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University  of  California. 

OIKT  OK 


A     TREAT^ISE 


PHARMACAL  JURISPRUDENCE 


A  THESIS   ON   THE   LAW  IN   GENERAL 


HARLEY  R.  WILEY,   A   B.,  L  L.  B 
Lecturer  (  n  Pharmacal  Jurisprudence 


l^NiviiRsiTY  f)K  California 


1904 

THE    HICKS-.IUDD   COMPANY, 

i'lblishkrs, 

21-2:!  First  Street,  San  Francisco,  Cai 


/u 


Copyrighted,  1904, 
By  Harley  R.  Wiley. 


PREFACE. 


The  preparation  of  this  book  was  suggested  by  the 
inconvenience  experienced  through  the  want  of  some 
treatise,  or  collection  of  authorities,  on  pharmacal  law. 
On  receiving  his  appointment  as  lecturer  in  this  depart- 
ment of  jurisprudence  the  author  found  himself  upon  a 
path  hitherto  almost  untrodden,  and  with  ver)'  little  to 
aid  him  in  his  efforts  to  present  the  subject  in  a  con- 
nected and  scientific  form. 

It  was  a  matter  of  some  surprise  that  no  text-book 
had  yet  been  produced  aiming  at  a  presentation  of  the 
principles,  with  a  collection  of  the  leading  cases,  which 
define  the  legal  aspects  of  a  profession  so  important  as 
that  of  pharmacy. 

It  is  intended  that  this  volume  shall  occupy  a  place 
heretofore  vacant  in  the    category  of  legal  text-books 
and  it  is  hoped  that  those  who  examine  its  contents  will 
do  so  with  such   indulgence   as  may  seem    due  to    the 
work  as  a  pioneer  in  its  peculiar   field. 

Haklev  R.  Wiley. 


CONTENTS. 


PAGE 

Table  of  Cases 3 

Introductory  Thesis  on  the  Law  in  General 11 

Chapter  I — Definitions  and  Scope  of  the  Subject 63 

Chapter  II — Historical  \'ievv  of  the  Subject 77 

Chapter  III — Legal  Limits  of  Pharmacy 93 

Chapter  IV — The  Common  Law  Right  to  Practice  Phar- 
macy, and  the  Reason  for  Statutory  Restrictions  on  the 
Right 115 

Chapter  V — Qualifications  of  Pharmacist  and  Statutory 
Regulations 128 

Chapter  \'I — Constitutionality  of  Laws  Regulating  the  Prac- 
tice of  Pharmacy 136 

Chapter  VII — License  Under  Statute 158 

Chapter  VIII — Explanatory  of  Contracts 164 

Chapter  IX — Contracts  of  Druggist  and  Pharmacist 169 

Chapter  X — Liability  of  Retail  Druggist  for  Negligence 176 

Chapter  XI — Liability  for  Error  in  Preparing  Prescriptions.. 197 

Chapter  XII — Liability  of  Manufacturing  Pharmacist 210 

Chapter  XII I — Contributory  Negligence 223 

Chapter  XIV— Special  Features,  Civil  and  Criminal 231 

Chapter  X\' — Important  Business  Features 239 

Chapter  XVI — Insurance  on  Drugs 247 

Chapter  XVII— The  Pharmacist  in  Court 255 


ALPHABETICAL  TABLE  OF  CASES. 


AlH'inethy  v.  Hutchinson,  3  L.  j.  Cli.  L'OH,  1   H .  c\;  T  28 239 

Ablenian  v.  IJootli,  21   How.  50(),  Ki  L.   Ed.   16'J,  5  U.  S. 

Notes  885 141 

Adams  v.  Heisel,  31  Fed.  Rep.  280 2i2 

Adler  v.  \Vhitbeck,  44  Ohio  St.  575,  9  X.  E.  (172 140 

Alcott  V.  Barber,  1  Wend.  526 98 

Allan  V.  State  S.  S.  Co.,  132  N.  V.  95,  28  Am.  St.  Rep.  556, 

30  N.  E.  482 232 

Barbier  v.  Connolly,  113  U.  S.  31,  5  Sup.  Ct.  Rep.  357,  28 

L.  Ed.  923,  10  U.  S.  Notes  947 120 

Barrett  V.  Belshe,  4  Bibb.  349 184 

Bergen,  In  re,  31  Wis.  386 68 

Bloom  V.  Soberski,  8  Misc.  Rep.  311,  28  N.  V.  Supp.  731....  162 
Boardman  v.  Merrimack  Mut.  Fire  Ins.  Co.,  8  Cush.  583  ...  253 
Bonaparte  v.  Camden,  Etc.,  R.  R.  Co.,  1  Bald.  220,  P^ed. 

Cas.  No.  1617 136 

Briscoe  v.   Bank  of   iventucky,  11   Pet.  257,  9  L.   Ed.  709, 

3  U.  S.  Notes  675 138 

Brown   v.   Marshall,  47   Midi.    576,  41  Am.    Rep.    728,   11 

N.  W.  392 193,  235 

Brown  V.  People,  11  Colo.  109,  17  Pac.  104 147,  162 

Bullingerv.  Mackey,  15  Blatchf.  550,  Fed.  Cas.  No.  2127....  239 

Burch  V.  Spencer,  15  Hun.  504^ 170 

Burgess  v.  Sims  Drug  Co.,  114  Iowa  275,  89  Am.  St.  Rep. 

359,  54  L.  R.  A.  364,  86  N.  W.  307 222 

Calder  v.  Bull,  3  Dall.  386,  1  L.  Ed.  648,  1  U.  S.  Notes  57...  138 
California   Fig  Syrup  Co.  v.  Frederick  Stearns  &  Co.,  73 

Fed.  Rep.  812,  43  U.  S.  App.  2.34,  20  C.  C.  A.  22,  33 

L.  R.  A.  56 243 

Carpenter  V.  Blake,  57  N.  Y.  12 232 

Carrigan  v.   Lycoming  Fire  Ins.  Co.,  53  \'t.  41S,  3S  Am. 

Rep.  687 252 

Chambers  v.  Chambers,  2  A.  K.  Marsh.  349 183 

Chicago,  Etc.,  Ry  Co.  v.  Freeman,  6  111.  App.  608 224 

Civil    Rights   Cases,  109  U.   S.  3,  3  Sup.  Ct.  Rep.  18,  27 

L.  Ed.  835,  10  U.  S.  Notes  594 141 

College  of  Physicians  v.  Rose,  3  Salk.  .17,  (i  Mod.  44 86 

Collins  V.  Carnegie,  1  Adol.  iS:  El.  695 162 


4  ALPHABETICAL    TABLE    OF    CASES. 

PAGE 

Collins  V.  Farmville  Insurance  and  Banking  Co.,  79  N.  C. 

279,  28  Am.  Rep.  322 250 

Colwell  V.  State,  37  S.  E.  129,  112  Ga.  75 135 

Commonwealth  v.  Baur,  Phila.,  Oyer  &  Terminer,  April, 

1869 234 

Commonwealth  v.  Butler,  99  Pa.  St.  540 139 

Commonwealth   v.    Hoviour,  23    Ky.   Law    Rep.   1724,    66 

S.  \V.  3 163 

Commonwealth  v.  Maxwell,  27  Pa.  St.  456 140 

Commonwealth  v.  Powell,  22  Ky.  Law  Rep.  1932,  62  S.  \V. 

19 135 

Cook  V.  People,  125  111.  278,  17  N.  E.  849 235 

Corfield  v.  Coryell,  4  Wash.  C.  C.  371,  Fed.  Cas.  No.  3230..  19 

Davidson  V.  Nichols,  11  Allen.  514 235,  237 

Dent  V.  West  Virginia,  129  L.  S.  114,  9  Sup.  Ct.  Rep.  231, 

32  L.  Ed.  623,  11  U.  S.  Notes  684 144,  147 

Dental  Examiners  v.  People,  123  111.  227,  13  N.  E.  201 159 

Dickerson  v.  Colgrove,  100  U.  S.  584,  25  L.  Ed.  618,  9  U.  S. 

Notes  872 66 

Dickson  v.  Jordan,  10  Ired.  Law  166,  53  Am.  Dec.  403 171 

Dixon  V.  Bell,  5  Maul.  &  Sel.  198,  1  Stark.  287,  17  R.  R. 

308 219 

Donaldson  v.  Beckett,  4  Burr.  2408 239 

Eastman  v.  State,  109  Ind.  278,  58  Am.  Rep.  400,  10  N.  E. 

97 147 

Eastham   v.    Commonwealth,   20  Ky.    Law  Rep.  1639,  49 

S.  W.  795 135 

Effinger  v.  Lewis,  32  Pa.  St.  369 66 

Ely  V.  O'Leary,  2  E.  D.  Smith  261 170 

Emerson  v.  Brigham,  10  Mass.  197,  6  Am.  Dec.  10i9 172 

Ex  parte  Heyfron,  7  How.  (Miss.)  127 162 

Ex  parte  Spinney,  10  Nev.  323 149,  150 

Farmers'  &  Mechanics'   Bank  v.  Smith,  3  Serg.  &  R.  68, 

6  Wheat.  131,  5  L.  Ed.  224,  2  U.  S.  Notes  65 136 

Ferdon  v.  Cunningham,  20  How.  Pr.  154 162 

Fleet    V.    Hollenkemp,    13   B.    i\Ion.   219,    56  Am.    Dec. 

563 170,  172,  174,  196 

Fox  V.  Dixon,  12  N.  Y.  Supp.  267,  58  Hun.  605 103 

Fox  V.  Glastenbury,  29  Conn.  204 224 

Fox  V.  Territory,  2  Wash.   Ter.  297,   5  Pac.  603,  5  West 

Coast  Rep.  339 149,  150 


ALPHAI5ETK  AI,    TAlil.K    OF    CASES  O 

French  V.  Maguire,  44  How.  Pr.  471 -'.V.) 

Gdge  V.  Censors,  63  N.  H.  92 KiO 

Gardner  v.  Tatum,  81  Cal.  370,  22  Pac.  880,  4  Cal.  Notes 

554 106 

Gee  V.  Pritchard,  2  Swans.  402,  lit  K.  R.  487 239 

(^libbons  v.  Ogden,  9  Wheat.  1-187,  6  L.  Ed.  23,  2  U.  .S. 

Notes  213 138 

Gilman  v.  Philadelphia,  3  Wall.  713,  18  L.  Ed.  96,  6  U.  S. 

Notes  556 138 

Grigsby  v.  Breckenridge,  2  Bush.  480,  92  Am.  Dec.  509 239 

Gwynn  v.  Duffield,  61  Iowa  64,  47  Am.  R-p.  802,  15  N.  W. 

594 224 

Hanford  v.  Payne,  11  Bush.  380 189 

Harding  v.  People,  10  Colo   387,  15  Pac.  728 159 

Hargan   v.  Purdy,  93  Ky.  424,  14  Ky.   Law  Rep.  383,  20 

S.  W.  434 162 

Hart  V.  Wright.a7  Wend.  267 171 

Hewitt  V.  Charier,  16  Pick.  353 147,  162 

Heyfron,  Ex  parte,  7  How.  (Miss.)  127 162 

Higden  v.  Higden,  2  A.  K.  Marsh.  42 182 

Hinckley  v.  Cape  Cod  R.  R.  Co.,  120  Mass.  257 224 

Hocum  V.  Witherick,  22  Minn.  152 224 

Holden  v.  Dakin,  4  Johns.  421 171 

Hoover  V.  Peters,  18  Mich.  51 170 

Hostetterv.  Fries,  17  Fed.  Rep.  622,  21  Blatchf.  339 242 

Humphreys  v.  Comline,  8  Blackf.  516 171 

Humphrey's  Specific  Homeopathic  Medicine  Co.  v.  Wenz, 

14  Fed.  Rep.  252 242 

Hyatt  V.  Boyle,  5  Gill  &  J.  110,  25  Am.  Dec.  276 171 

Hyland  v.  .Sherman,  2  E.  D.  Smith,  234  170 

lUidge  V.  Goodwin,  5  Car.  &  P.  190 218 

In  re  Bergen,  31  Wis.  386 68 

fohnson  v.  Mcintosh,  8  Wheat.  384,  4  L.  Ed.  681,  2  U.  S. 

Notes  201 136 

Johnson  v.  State  (Tex.  Crim.),  iH)  S.  W.  552 135 

Johnson  v.  Union  M.  &  F.  Ins.  Co.,  127  Mass.  555 253 

Jones  V.  George,  56  Tex.  149,  42  Am.  Rep.  689 174 

Justice  V.  Lang,  42  N.  Y.  497,  1  Am.  Rep.  576 164 

Kelly  V.  Home  Ins.  Co.,  97  Mass.  288 2.5.3 

Lanzer  v.  Unterberg,  9  Misc.  Rep.  210,  29  N.  Y.  Supp.  683..  162 
Lawrence  v.  National  F'ire  Ins.  Co.,  127  Mass.  557 253 


6  ALPHAIiETICAL     TABLE    OF    CASES. 


PAGK 


Lindsley  v.  Bushnell,  15  Conn.  235,  3S  Am.  Dec.  79 185 

Little  V.   Hackett,  IIH  U.  S.  371,  6  Sup.  Ct.  Rt-p.  3'.ll,  2H 

L.  Ed.  652,  11  U.  S.  Notes  30 223 

Longmeed  v.  Holliday,  6  Eng.  Law  &  Eq.  5H2 21!) 

Lord  V.  Grow,  39  Pa.  St.  88,  80  Am.  Dec.  504 171 

Losee  v.  Buchanan,  51  N.  Y.  476,  10  Am.  Rep.  623 232 

Louisiana  v.  Mayor  of  New  Orleans,  109  U.  S.  283,  3  Sup. 

Ct.  Rep.  211,  27  L.  Ed.  936,  10  U.  S.  Notes  628 165 

Lynch  v.  Nurdin,  1  Adol.  &  El.  W.  S.  29,  4  P.  &  D.  672, 

1  Q.  B.  29,  10  L.  J.  O.  B.  73,  5  Jur.  797 21S 

MacDougall   v.    Central    R.    R.    Co.,    63   Cal.    431,  4    Cai. 

Notes  99 224 

Mallory  v.  Griffey,  85  Pa.  St.  275 224 

Martin  v.  Temperiey,  4  Q.  B.  298,  3  G.  &  D.  497,  12  L.  j. 

g.  B.  129,  7  Jur.  150 ."  .  222 

McCubbin  v.  Hastings,  27  La.  Ann.  715 198,  222 

McDonald  v.  Snelling,  14  Allen  290,  92  Am.  Dec, 768  &  Note  237 

McLane  v.  Sharp,  2  Harr.  (Del.)  481 185 

McNaughten  V.  Joy,  1  Weekl.  Notes  Cas.  470 170 

McVeigh  v.  Gentry,  72  App.   Div.  598,   76   N.    Y.  Supp. 

535 196,  219 

Merills  v.  Tariff  Manufacturing  Co.,  10  Conn.  388,  27  Am. 

Dec.  682  and  Note 185 

Miller  V.  Scherder,  2  N.  Y.  267 170 

Mills  V.  Taylor,  4  Burr.  2362 240 

Morris  v.  Chicago,  Etc.  R.  R.  Co.,  45  Iowa,  29 226 

Morris  v.  Piatt,  32  Conn.  75 232 

Morison  v.  Moat,  9  Hare,  241 239 

Munkley  v.  Hoyt,  179  Mass.  108,  60  N.  E.  413 163 

Munn  V.  Illinois,  94  U.  S.  145,  24  L.  Ed.  77,  9  U.  S.  Notes  21..   121 

Neanow  v.  Uttech,  46  Wis.  590,   1  N.  W.  221 223 

Nettleton  v.  Dinehart,  5  Cush.  543 238 

Noel  V.  People,  187  111.  587,  79  Am.  St.  R.p.  238,  .58  N.  E.  61ii  149 

Norton  v.  Booth,  34  La.  Ann.  913 194 

Norton  v.  Sewall,  106  Mass,  143,  8  Am.  Rep.  298 222 

Orr  V.  Meek,  111  Ind.  40,  11  N.  E.  787 147 

People  V.  Fisher,  83  111.  App.  114 133 

People  V.  Lee  Wah,  71  Cal.  80, 11  Pac.  851,  4  Cal.  Notes  313  106 

People  V.  McCoy,  125  111.  289,  17  N.  E.  786 KK) 

People  V.  Moorman,  86  Mich.  433,  49  N.  W.  263 153 

People  V.  Phippin,  70  Mich.  6,  37  N.  W.  888 149,  150 


ALPHA  IJi:  THAI.    lAIU.E    Ol"    CASES.  / 

People  V.  Rontey,  21  N.  V.  St.  Rep.  174,  4  N.  V.  Supp.  2:55, 

17  N.  Y.  624,  22  N.  E.  112S 2.31 

People  V.  Turner,  1  Cal.  150,  52  Am.  Dec.  295.  and  Note, 

1  Cal.  Notes,  13 162 

People  V.  York  Co.,  80  111.  App.  102 135 

Peters  v.  Johnson,  50  W.  Va.  »)44,  41  S.  E.  190,  57  L.  K.  A. 

428,  88  Am.  St.  Rep.  909 19(),  219 

Pierce  v.  State,  13  N.  H.  536 150 

Pollard  V.  Allen,  96  Me.  455,  52  Atl.  924 134 

Presser  v.  Illinois,  116  U.  S.  263,  6  Sup.  Ct.  Rep.  580,  29 

L.  Ed.  615,  11  U.  S.  Notes  27 140 

Railroad  Co.  v.  [ones,  95  U.  S.  439,  24  L.  Ed.  506,  9  U.  S. 

Notes  279  ..". 224 

Railway  Company  v.  Alabama,  128  U.  S.  96,  9  Sup.  Ct. 

Rep.  28,  32  L.  Ed.  352,  11  U.  S.  Notes  621 151 

Ray  V.  Burbank,  61  Ga.  505,  34  Am.  Rep.  103 235 

Regina  v.  Haines,  2  Car.  &  K.  368 217 

Regina  v.  Svvindall,  2  Car.  &  K.  232,  2  Cox  C.  C.  141  217 

Reid  V.  Morton,  119  111.  118,  6  N.  E.  414 140 

Ronker  v.  St.  John,  21  Ohio  Cir.  Ct.  Rep.  39 224 

Salisbury  v.  Stainer,  19  Wend.  159,  32  Am.  Dec.  437 171 

Sharpless  v.  Mayor  of  Philadelphia,  21  Pa.  St.   160,  2  Am. 

Law  Reg.  25,  85,  59  Am.  St.  Rep.  759  and  Not  137 

Shaw  Stocking  Co.  v.  Mack,  12  Fed.  Rep.  710,  21  Blatchf  1  242 

Simonds  V.  Henry,  39  Me.  156 232 

Skirving  V.  Ross,  31  Upper  Canf  423 162 

Smith  V.  Alabama,  124  U.  S.  465,  8  Sup.  Ct.   Rep.  564,  31 

L.  Ed.  508,  11  U.  S.  Notes  483 151 

Smith  V.  Sherman,  4  Cush.  408 238 

Smith  V.  Tracy,  2  Hall  (N.  Y.)  465,  501 100 

Spaulding  v.  Alford,  1  Pick.  33 147 

Spinney,  E.\  parte,  10  Nev.  323 149,  150 

State  V.  Creditor,    44    Kan.  565,  21    Am.  St.   Rep.  306,  24 

Pac.  346 147,  162 

State  V.  Davis,  76  Mo.  App.  586 134 

State  V.  Donaldson,  41  Minn.  74,  42  N.  \V.  781 149,  150,  235 

State  V.  Fleischer,  41  Minn.  69,  42  N.  W.  69(1 1.59 

State  V.  Forcier,  65  N.  H.  42,  17  Atl.  577 149,  150 

State  V.  Freeman,  38  N.  H.  426 150 

State  V.  Green,  112  Ind.  462,  14  N.  E.  352 149,  150,  162 

State  V.  Hathaway,  115  Mo.  36,  21  S.  W.  1081. ..149,  150,  154,  162 


b  ALPHABETICAL    TABLE    OF    CASES. 

State  V.  Hipp,  38  Ohio  St.  219 18y 

State  V.  Jordon,  87  Mo.  App.  420 ]:^4 

State  V.  Marshall,  64  N.  H.  649,  15  Atl.  210 150 

State  V.  Schultz,  11  Mont.  429,  28  Pac.  643 161 

State  V.  Vanderslius,  42  Minn.  129,  43  N.  W.  7SM,  6  L.  R. 

A.  119 14S,  162 

State  V.  Van  Doran,  109  N.  C.  864,  14  S.  E.  32 104 

State  V.  Workman,  75  Mo.  App.  454 130 

Storm  V.  Commonwealth,  105  Ky.   619,  20   Ky.  L;ivv  Kep. 

1434,  49  S.  W.  451 '. '. 135 

Suffolk  Co.  V.  Shaw,  21  App.  Div.  146,  47  N.Y.  Supp.  349..134, 135 
Tennessee  v.  Davis,  100  U.  S.  257,  25  L.  Ed.  648,  9  U.  S. 

Notes  823 142 

Tessymond's  Case,  1  Lewins'  Crown  Cas.  169 189,  217,  231 

Thomas  v.  Winchester,  6  N.  Y.  (2  Seld.)  397,  57  Am.  Dec. 

455  and  note 196,  210,  237 

Thompson  v.  Ashton,  14  Johns.  316 171 

Thompson  v.  Staats,  15  Wend.  395 102 

Timmermanv.  Morrison,  14  Johns  369 96.98,  99 

Trade-Mark  Cases,  100  U.  S.  82,  25  Law  Ed.  550,  9  U.  S. 

Notes  792 242 

Underwood  v.  Scott,  43  Kan.  714,  23  Pac.  942 105 

United  States  v.  Cruikshank,  92  U.  S.  542,  23  L.  Ed   588,  8 

U.  S.  Notes  837 138,  141 

United  States  v.  Harris,  106  U.  S.  629,  1  Sup.  Ct.  Rep.  609, 

27  L.  Ed.  290,-  10  U.  S.  Notes  430 141 

"United  States  v.  Reese,  92  U.  S.  221,  23  L,  Ed.  563,  8  l\  S. 

Notes787 140 

Van  Bracklin  v.  Fonda,  12  Johns.  468,  7  Am.  Dec.  339..170,  187 
Washington  Etc.  R.  R.  Co.  v.  Gladmon,  15  Wall  401,  21  L. 

Ed.  114,  7  U.  S.  Notes  909 223 

Wellington  v.  Downer  Kerosene  Oil  Co.,  104  Mass.  64 237 

Wells  V.  Phelps,  4  Bibb.  563 183 

Westchester  Co.  v.  Dressner,  23  App.  Div.  215,  48  N.  ^'. 

Supp.  853 133 

Waymire  v.  Wolfe,  52  Iowa  533,  3  N.  W.  541 226 

Wheaton  v.   Peters,   8  Pet.  591,   8   L.   Ed.   1055,  3  U.  S. 

Notes,  482 239 

Wilkinson  v.   Leland,  2  Pet.  656,   7   L.  Ed.  542,  2  U.  S. 

Notes  883 136 


BO^^CW.NJCWV^/""'  ■VKTV-'Vl 


AI.PHARETICAI.    TAIU.K    OF    CASES.  9 

VVinterbottom   v.   Wright,   10    Mtes.    cS:   W.   109,  11    I..  J. 

Exch.  415 L>16 

Wise  V.  Morgan,  101  Tenn.  273,  45  S.  W.  !»71 134 

Wohlfahrt  v.  Beckert,  12  Abb.  N.  C.  478 233 

Wright  V.  Hart,  18  Wend.  449 170 

Wright  V.  Lanckton,  19  Pick,  288 147 

Vovatt  V.  Winyard,  1  J.  &  W.  394 239 


i'HARMACAL  JURISPRUDENCE. 


Introductory  Thksts  ox  the  La\y  in  General. 

Before  l)eiiimiiiii>-  the  study  of  any  special 
branch  of  jnrisprndence,  the  stndeut  will  derive 
benefit  from  a  cursory  2,  la  nee  at  the  broad  field 
of  the  la^y  in  general,  of  which  the  subject  of 
this  treatise  is  a  snuill  but  growing-  department. 

Whether  the  practicing  attorney  will  be 
profited  or  not  by  these  introductory  thoughts 
will  depend,  in  a  measure,  upon  how  wide  and 
thorough  haye  been  his  studies  preparatory  for 
his  professi<m ;  for  the  lawyer  who  has  acquired 
his  legal  education  only  by  desultory  and  un- 
systematic reading  should  find  in  this  brief 
sketch  thoughts  deserving  his  attention. 

The  growth  of  any  system  of  jurisprudence  is 
necessarily  slow  in  proportion  to  its  soundness 
and  strength.  Society,  under  primitive  condi- 
tions, is  characterized  by  savage  simplicity  as  to 
its  legal  vestments,  and  moves  in  a  course  of 
freedom  as  unlvammeled  as  it  is  unstable;  but, 
in  the  usual  cmih-sc  of  events,  it  clothes  itself  in 
the  chaste  garments  of  law  and  order  and  there- 
by attains  to  conditions  of  stability. 


12  IXTRODUCTORV    THESIS. 

The  begiiiniui;s  of  law  among  primitive  men 
are,  naturally,  in  the  form  of  simple,  home-made 
usages  and  customs,  observed  from  time  imme- 
morial, by  common  consent,  and  at  last  formally 
adopted  as  rules  of  laAv  to  be  enforced  by  what- 
ever there  may  be  of  governing  power.  But 
these  simple  rules  of  action,  answering  well  to 
the  needs  of  a  primitive  people  are  quite  in- 
sufiflcieut  for  the  requirements  of  the  same 
people  after  they  have  attained  to  greater  re- 
finement and  surrounded  themselves  with  the 
artificial  conditions  of  civilization.  Those  first 
crude  laws  must  undergo  innumerable  modifica- 
tions and  almost  infinite  expansion,  growing 
more  and  more  complex  from  generation  to  gen- 
eration, in  order  that  they  nmy  serve  to  bind  to- 
gether the  vast  social  fabric  of  modern  times. 

Various  branches  of  the  human  family  have 
attained  to  national  character  along  indepen- 
dent lines,  each  developing  its  own  system  of 
jurisprudence.  However,  the  laws  of  different 
nations  do  not  present  so  many  points  of  differ- 
ence as  might  be  expected.  Human  nature  is 
about  the  same  the  world  over,  and  allowing  for 
differences  of  climate,  occupation,  religion,  etc., 
the  uniformity  in  the  laws  of  the  civilized  world 
is  a  nmtter  highly  satisfactory  to  the  progressive 
jurist. 

Many  things  have  combined  to  produce  this 
comparatively  uniform  state  of  the  laws.  The 
world's  ureat  centers  of  civilization  have  always 


PIIAKMACAI.    jrRISPRrDENCE.  13 

been,  to  a  lircater  or  less  degree,  in  touch  witli 
one  another;  and  the  coinity  of  nations,  eoni- 
merce,  and  conquest,  liave  tended  constantly 
toward  nniforniity  of  law.  Ajiain,  some  nations 
have  descended  from  a  common  ancestry,  and, 
like  children  reared  at  the  same  fireside,  have 
carried  with  them  to  maturity  many  principles 
and  rules  of  action  impressed  upon  them  during 
the  earlier  stages  of  their  existence.  But  far 
more  significant  is  the  fact,  that  the  majority  of 
the  various  nations  from  which  our  common- 
wealths have  sprung,  were,  at  some  time  in  his- 
tory, brought  within  the  sphere  of  influence  of 
the  vast  and  over-mastering  civilization  of  the 
Roman  Empire.  The  latter  fact  will  come  be- 
fore us  again  in  that  part  of  this  thesis  devoted 
to  the  discussion  of  the  English  common  law 
and  its  antecedents,  Avherein  we  shall  endeavor 
to  present  a  nu)re  concrete  and  detailed  sketch  of 
the  law's  slow  process  (ff  development.  A  brief 
analysis  of  American  law  must  first  claim  our 
attention. 

American   System  of  JuRisniuDENCE. 

It  may  be  a  species  of  arrogance  that  inspires 
the  citizen  of  the  United  States  of  America  to 
speak  of  the  laws  of  his  country  as  the  "Ameri- 
can System  of  Jurisprudence,"  apparently  un- 
mindful of  the  fact  that  this  great  country,  of 
which  we  are  so  justly  proud,  is  but  one  among 
a   somewhat    numerous    family   of    independent 


14  AMERICAN    SYSTEM. 

American  nations.  We  may  defend  the  position, 
however,  by  the  rather  doubtful  argument  that 
it  is  customary  to  thus  speak  of  matters  pertain- 
ing to  the  Great  Kepublic. 

In  speaking  of  the  system  of  jurisprudence  of 
this  country,  the  term  jurisprudence  is  used  in 
that  secondary,  and,  perhaps,  unscientific  sense 
in  which  it  is  commonly  used  to  denote  the  entire 
body  of  laws  of  a  certain  country  as  distin- 
guished ,  collectively,  from  those  in  force  in 
other  countries. 

The  time-honored  classification  of  the  law,  ob- 
served by  the  older  waiters,  into  the  AVritten 
Law  and  the  Unwritten  Law,  familiar  to  stu- 
dents as  Lex  Scripta  and  Lex  non  Scripta,  is 
still  preserved,  and  in  this  country  is  expressed 
by  the  terms  statute  law'  and  common  law. 
Under  the  old  English  classification,  the  lex  non 
scripta  embraced  the  customs  or  common  law  of 
England,  as  distinguished  from  the  statutes  or 
laws  enacted  by  the  Parliament,  which  were  des- 
ignated lex  scripta. 

The  written  or  statute  law  of  America  may  be 
best  considered  in  two  branches.  In  the  first  or 
federal  branch  are  embraced  the  Constitution  of 
the  United  States  or  fundamental  law  of  the 
land,  the  laws  passed  by  the  Congress,  and  all 
treaties  entered  into  with  other  countries. 

The  status  and  dignity  of  this  branch  is  de- 
fined by  the  Constitution  itself,  which  declares, 
by  Article  VI,  that  "This  Constitution,  and  the 


niARNrACAI.    H'RISPRUDENCE.  la 

laws  of  tlie  Tnited  States  wliicli  shall  be  made  in 
piii'snaiice  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  nnder  the  anthority  of  the 
I'nited  States,  shall  be  the  supreme  law  of  the 
land;  and  the  judges,  in  ever^'  State,  shall  be 
bound  thereby,  anything  in  the  Constitution  and 
laws  of  any  State  to  the  contrary  notwithstand- 
ing." 

The  power  of  the  Congr(^ss  to  make  laws  is  de- 
rived wholly  from  the  Constitution,  and  any  act 
done  by  that  body,  in  excess  of  such  authority, 
can  have  no  force  as  a  law. 

A  bill,  the  terms  of  which  are  unconstitu- 
tional, may  be  passed  by  both  houses,  receive  the 
President's  signature,  and  be  placed  upon  the 
statute  books  as  a  law  of  the  land.  It  may  even 
be  enforced  by  ministerial  otficers  throughout 
the  land  and,  indeed,  be  acted  upon  by  the  judges 
of  the  lower  courts.  Though  such  a  law  bears 
within  itself  the  fatal  taint  of  unconstitutional- 
ity, it  must  await  the  time  when  it  shall  be  ap- 
plied in  the  determination  of  some  suit,  and, 
either  originally  or  on  appeal,  be  brought  to  the 
consideration  of  the  Supreme  Court  of  the 
United  States.  When,  however,  this  supreme 
tribunal  shall  have  examined  the  statute,  and 
decided  that  its  provisions  are  in  any  sense  at 
variance  with  the  principles  of  the  Constitutiim, 
or  in  excess  of  the  powers  of  the  Congress,  it  will 
l>e  deemed  absolutely  void,  and  thereafter  will 
receive  recognition  nowhere  as  a  law. 


16  AMERICAN    SYSTEM. 

The  American  citizen  has  been  rightly  taught 
to  look  upon  the  Tonstitution  of  the  United 
States  as  being,  in  a  political  sense,  the  ''rock  of 
his  salvation."  It  certainly  is  the  foundation 
upon  which  all  other  foundations  in  our  complex 
national  structures  must  rest,  and  it  is  also  the 
barrier  beyond  which  no  daring  adventurer  in 
law  or  statecraft  may  hope  to  pass  unchallenged. 
In  the  vast  fields  of  American  legislation  and 
politics  much  questionable  work  is  done,  but  the 
strong  fence  of  the  Constitution  hems  those 
fields  about  and  insures  from  destruction  the 
beautiful  gardens  that  Liberty  loves  to  tend. 

The  Constitution  came  from  The  People  and 
can  be  changed  only  by  The  People.  It  is  their 
potent  means  of  restraint  upon  both  those  who 
make  the  laws  and  those  Avho  administer  them, 
and  by  its  reassuring  presence,  he  who  is  troubled 
during  times  of  political  distrust  and  disturb- 
ance is  encouraged  to  rely  upon  the  stability  of 
a  government,  the  vital  forces  of  which  are  thus 
ever  subject  to  a  restraining  hand. 

As  stated  above,  the  laws  of  the  United  States 
and  the  treaties  thereof  are  both,  equally,  parts 
of  the  supreme  law  of  the  land.  Therefore,  if  a 
law  of  the  United  States,  made  in  pursuance  of 
the  Constitution,  and  a  treaty,  made  under  the 
authority  of  the  ITnited  States,  are  found  to  be 
in  conflict  with  each  other,  since  they  are  of  equal 
force,  the  one  last  made  must  necessarily  super- 
sede the  otlK^r,  as  being  the  latest  expression  of 
sovereign   will. 


PHARMACAl.   JURISPRUDENCE.  17 

The  second  branch  of  the  written  law  of  this 
country  includes  the  constitutions  of  the  several 
States  of  the  Union,  and  the  laws  enacted  by 
each  State  in  pursuance  of  its  constitution. 
Neither  the  State  constitutions  nor  the  State  laws 
are  a  part  of  the  supreme  law  of  the  land ;  hence, 
whenever  they  come  into  conflict  with  any  law 
of  the  character  of  those  embraced  in  our  first 
division,  they  must  yield  to  it. 

In  fjeneral,  the  constitution  and  laws  of  each 
State  are  of  force  only  within  the  limits  of  its 
own  territory.  By  comity  between  States,  how- 
ever, Avhich  is  a  sort  of  international  courtesy, 
one  State  will  apply  within  its  own  territory  the 
laws  of  another  State  in  matters  that  concern  the 
latter  or  its  citizens.  By  comity,  the  corpora- 
tions of  one  State  are  permitted  to  pursue  a 
laAvful  business  in  another  State.  A  marriage, 
valid  in  the  State  where  entered  into,  is  valid 
everywhere.  Likewise,  a  decree  of  divorce  that 
is  valid  where  iiranted,  is  valid  everywhere.  Ac- 
tions for  injuries  to  persons  or  to  personal 
property  and  actions  u])on  contract  may 
be  commenced  wherever  the  defendant  can 
be  served  with  ])rocess,  rei^ardless  of  the  juris- 
diction in  which  the  cause  of  action  arose.  On 
the  other  hand,  it  may  happen  tliat  by  one  State 
a  right  of  action  is  i>iven  that  other  States  are 
not  expected  to  recognize,  such  as  the  rii^ht  to 
recover  a  statutory  ])enalty.  In  the  latter  case 
the  rioht  to  recover  is  ^iven  bv  statute  and  can 


18  AMERICAN    SYSTEM. 

be  euforeed  only  witliiu  the  jurisdiction  where 
the  statute  is  law.  Of  the  same  nature  is  a 
statutory  right  of  action  given  by  a  State  against 
any  person,  who,  by  wrongful  act,  neglect  or  de- 
fault, shall  cause  the  death  of  another.  At  the 
common  law,  no  right  of  action  rose  against  one 
for  thus  causing  the  death  of  another;  hence, 
States  whose  laws  do  not  give  such  a  right,  will 
not  enforce  it  within  their  territory.  Again,  all 
actions  to  recover  land,  or  for  injuries  to  real 
estate,  are  held  to  be  local  in  their  nature,  and 
must  be  commenced  in  the  jurisdiction  where 
the  land  is  situated. 

The  examples  given  above  will  serve  as  illus- 
trations of  the  nature  and  limits  of  interstate 
comity.  It  may  be  noted  here  that  this  principle, 
as  recognized  and  acted  upon  between  States,  is 
Identical  with  that  which  underlies  the  comity 
of  nations,  and  is  governed  by  the  rules  of  pri- 
vate international  law.  It  is  one  of  the  pleasing 
products  of  civilization,  tending  greatly  to  lessen 
the  inconvenience  which  must  naturally  arise 
through  the  conflict  of  laws  enacted  by  different 
States  possessing  sovereign  powers. 

There  are  some  cases,  arising  from  interstate 
relations,  that  the  Tonstitution  of  the  ITnited 
States  has  not  left  to  be  adjusted  by  comity,  but 
concerning  wdiich  positive  rules  have  been  laid 
down.  In  Article  VI  it  is  provided  that  "Full 
faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceed- 


PIIARMACAL   JURISPRUDENCE.  19 

ings  of  every  otlier  State.  And  the  (\)iii>Tess 
may  by  general  laws  ])i'('S(iibe  tlie  manner  in 
which  such  acts,  records  aiid  ])r(M('('(liinj;s  shall 
be  proved,  and  (he  elfecl  (heicor."  Section  -  of 
the  same  artich'  ])rovides  that  "The  citizens  of 
each  State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  States,'' 
Concerning  the  "privileges  and  immunities"  re- 
ferred to  by  the  last  section  quoted,  Mv.  Justice 
Washington,  in  Corfield  vs.  Coryell,  4  Wash. 
C.  C.  371,  380,  Fed.  Cas.  No.  3230,  says:  ''Pro- 
tection by  the  government,  the  enjoyment  of  life 
and  liberty,  with  the  right  to  acquire  and  pos- 
sess property  of  every  kind,  and  to  pursue  and 
obtain  happiness  and  safety,  subject  nevertheless 
to  such  restraints  as  the  government  may  justly 
prescribe  for  the  general  good  of  the  whole;  the 
right  of  a  citizen  of  one  State  to  pass  through 
or  to  reside  in  any  other  State,  for  purposes  of 
trade,  agriculture,'  professional  pursuits,  or 
otherwise,  to  claim  the  benefit  of  the  writ  of 
habeas  corpus,  to  institute  and  maintain  actions 
of  every  kind  in  the  courts  of  the  State,  to  take, 
hold,  and  dispose  of  property,  either  real  or  per- 
sonal, and  an  exemption  from  higher  taxes  or 
impositions  than  are  paid  by  citizens  of  other 
States,  may  be  mentioned  as  some  of  the  princi- 
pal privileges  and  immunities  of  citizens  which 
are  clearly  embraced  by  the  general  description 
of  privileges  deemed  to  be  fundamental." 


20  AMERICAN    SYSTEM. 

Ill  view  of  the  coinpreheiisivp  charac-ter  of  the 
expression  "privile<»es  and  immunities, *'  it  is 
generally  conceded  to  be  safest  to  leave  their 
meaning-  open  for  construction  as  to  each  ques- 
tion that  may  be  raised  under  them  and  "to  be 
determined  in  each  case  upon  a  view  of  the  par- 
ticular rights  asserted  and  denied  therein." 
Nevertheless,  the  enumeration  given  by  Mr.  Jus- 
tice Washington  will  at  least  serve  to  suggest 
the  nature  of  the  questions  that  may  arise  under 
this  provision  of  the  Constitution. 

This  same  Section  2  of  Article  IV  provides, 
also,  in  its  second  clause,  that  "A  person  charged 
in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  an- 
other State,  shall,  on  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  de- 
livered up,  to  be  removed  to  the  State  having  ju- 
risdiction of  the  crime." 

We  have  briefly  suggested  the  outlines  of  that 
which  constitutes  the  written  or  positive  law  in 
force  within  the  United  States  of  America. 
Within  their  respective  jurisdictions,  the  writ- 
ten or  positive  laws  referred  to,  as  interpreted 
from  time  to  time  by  the  judiciary,  supersede  all 
other  laws.  The  Constitution  of  the  United 
States  is  fundamental  and  paramount,  and  with 
the  laws  passed  by  the  Congress  in  pursuance 
thereof,  and  the  treaties  made  by  the  authority 
of  the  United  States,  is  supreme  throughout  the 
entire  Union.     The  (■onstituti<ms  and  statutes  of 


PHARMACAI.    HKISPRrOEXCE.  21 

the  sovoral  States,  subject  to  the  supiUMiie  hnv 
just  referred  to,  are  superior  to  all  other  laws 
within  their  respective  jurisdictions. 

In  its  entirety,  one  could  hardly  iniai»ine  a 
more  conii)lete  and  iniposinu  structure  than  ap- 
pears in  this  A'ast  auureiiation  of  positive  hnv, 
havinii'  its  manifold  character,  as  endn'acinii'  the 
distinct  systems  of  many  States,  made  possible 
and  even  harmonious  by  the  supreme  restraints 
exercised  over  the  whoh^  by  the  Constitution, 
aided  by  the  Congress  and  interstate  comity. 

It  is  to  be  borne  in  mind  that,  within  consti- 
tutional limits,  the  Conoress,  and  the  legisla- 
tures of  the  several  States,  respectively,  may 
pass  such  laws,  or,  in  other  w  ords,  lay  down  such 
rules  of  action  to  be  enforced  Avithin  their  re- 
spective territorial  limits,  as  to  them  shall  seem 
proper.  It  is  likewise  to  be  remembered  that, 
whenever  the  law-making  poAver  has  thus  ex- 
pressed its  will  in -i-egard  to  any  subject  Avjiat- 
ever,  its  mandates  must  be  followed,  regardless 
of  what  may  have  been  the  law  before. 

It  is  the  duty  of  the  ccmrts  to  determine 
whether  or  not  a  given  statute  is  constitutional, 
and  also  whether  or  not  the  case  at  bar  or  on  trial 
comes  wilhin  the  provisions  of  the  statute.  If 
the  trial  c(mrt  is  satisfied  that  the  case  under 
considerati<»ii  falls  within  the  class  intended  to 
be  ])rovid('d  for  liy  the  slatiilc,  its  judgment 
must  be  rendeied  in  accordance  therewith,  unless 
the  constitutionalitv  of  the  law  has  been  sue- 


22  THE    COMMON    LAW. 

cessfully  attacked.  But,  if  the  court  is  satisfied 
that  the  case  on  trial  is  one  not  included  in  the 
meaning-  of  the  statute,  there  being  no  other 
statutory  provision  covering  it,  the  court  must 
render  its  decision  in  accordance  with  the  prin- 
ciples of  the  common  law. 

It  is  proposed  now  to  present  to  the  reader  a 
few  facts,  explanatory  of  the  sources,  grov\-th, 
and  present  nature  of  the  great  body  of  legal 
principles  known  as  the  common  law.  Some  idea 
of  the  breadth  and  significance  of  this  great  sys- 
tem ma}^  be  gathered  from  the  fact,  that,  by  its 
light  our  constitutions  and  statutes,  both  federal 
and  state,  have  been  made  and  interpreted,  and 
that  its  wealth  of  learning  must  supply  rules  of 
decision  for  every  case,  outside  of  statutory  laws 
and  the  rules  of  equity,  that  may  arise  from  all 
the  complex  relations  of  modern  civilization,  as 
exemplified  in  the  United  States  of  America. 

The   Common   Law. 

It  is  generally  said  that  the  United  States  has 
no  common  law,  and  this  statement  seems  to  be 
justified  by  the  constitutional  limits  thrown 
around  our  federal  system.  Primarily,  the  laws 
of  the  latter  system  consist  only  of  the  Consti- 
tution, the  laws  enacted  by  the  Congress  in  pur- 
suance thereof,  and  the  treaties  made  by  the 
authority  of  the  Ignited  States.  Possibly  the 
Congress,  had  it  seen  fit,  might  by  legislative 
enactment  have  made  the  common  law  of  Eng- 


PHARMACAI.    H'RISPRUDENCE.  23 

land  a  part  of  our  federal  system,  but  it  lias  not 
done  so.  However,  there  remains  the  fa<t  that 
the  Constitution  itself,  and  the  treaties  and  laws 
referred  to  were  framed  by  people  accustomed 
to  live  under  the  principles  of  the  English  com- 
mon law,  and  have  been  applied  and  interpreted 
by  our  judiciary  in  the  lioht  of  those  principles 
and  in  acccird  with  their  spirit;  so  that  by  this 
means  there  has  been  developed,  supplementary 
to  the  primary  system  of  federal  positive  law, 
a  kind  of  secondary  system  of  federal  case  law. 

In  regard  to  the  statement  that  the  United 
States  has  no  common  law.  Justice  Matthews 
saj^s:  "There  is,  however,  one  clear  exception  to 
the  statement  that  there  is  no  national  common 
law.  The  interpretation  of  the  Constitution  is 
necessarily  influenced  by  the  fact  that  its  pro- 
visions are  framed  in  the  language  of  the  Eng- 
lish common  law,  and  are  to  be  read  in  the  light 
of  its  history.  The  CMode  of  Constitutional  and 
statutory  construction,  which,  therefore,  is  grad- 
ually formed  by  the  judgments  of  the  Supreme 
Court  in  the  application  of  the  Constitution  and 
the  laws  and  treaties  made  in  pursuance  thereof, 
has  for  its  basis  so  much  of  the  common  law  as 
may  be  implied  in  the  subject,  and  constitutes  a 
common  law  resting  upon  national  authority." 

The  common  law  in  force  in  nearly  all  the 
States  of  the  Cnicm  embraces  such  of  the  English 
common  law  principles,  modified  by  English 
statutes  enacted  before  American  colonization, 


24  THE    COMMON    LAW. 

as  our  ancestors  foimd  to  be  suited  to  tlie  con- 
ditions surrounding-  them  in  America. 

As  was  natural,  and  to  some  extent  necessary 
as  subjects  of  Great  Britain,  the  men  who  colo- 
nized this  country  applied  to  their  own  needs 
the  principles  of  that  system  of  law  under  which 
thev  and  their  forefathers  had  been  accustomed 
to  live;  and  it  can  be  easily  understood  that  this 
collection  of  laws,  so  complete  and  so  long  used 
by  an  enlightened  people,  was  capable  of  supply- 
ing most  of  the  rules  necessary  for  use  in  the 
affairs  of  the  American  colonies. 

If  the  English  law  failed,  at  any  time,  to  sup- 
ply a  specific  rule  suited  to  the  conditions  of 
any  case  that  chanced  to  arise  in  the  colonies, 
a  general  principle  could  ahvays  be  found  under 
which  the  court  might  formulate  a  rule  appli- 
cable to  the  case  at  bar.  Thus,  before  the  close 
of  the  colonial  period,  by  the  adoption  of  such 
common  law  rules  as  were  suited  to  existing  con- 
ditions and  by  the  application  of  common  law 
principles  as  the  basis  for  such  other  rules  as 
were  needed,  our  country  had  developed  its  own 
system  of  common  law. 

It  is  apparent  that  tliough  the  American  and 
English  systems  of  law  are  not  wholly  identical, 
yet  they  are  intrinsically  of  the  same  nature; 
the  former  being  broadened  in  some  respects,  we 
think,  by  (mr  newer  life  and  freer  institutions. 

Tlie  State  of  Louisiana  may  be  noted  as  a 
marked  exception  to  the  above  rule  as  to  the  liis- 


PHARMACAI.    jrRISPRUDEXCE.  'ZO 

tory  and  character  of  tlio  common  law  of  the 
several  States  of  the  T^ni(m.  Louisiana  was  a 
French  colon.v.  and  Hk^  evidences  of  its  colonial 
nationality  are  manifest  in  the  nature  of  its  un- 
written law  at  the  present  day. 

Some  traces  of  other  national  systems  are  dis- 
coverable here  and  there  among-  the  States,  but, 
with  these  few  excepti<His,  the  English  common 
law  prevails  throughout  the  Union  as  the  sub- 
stratum of  American  Jurisprudence. 

Owing  to  the  fact  that  the  principles  of  the 
English  law  have  thus  descended  to  us 
as  a  sort  of  heritage,  a  knowledge  of  those  prin- 
ciples has  always  been  deemed  fundamental  in 
the  equipment  of  a  liberally  educated  American 
citizen,  and  the  sine  qua  uon  of  one  who  intends 
to  devote  himself  to  the  practice  of  the  legal  pro- 
fession. 

In  order  to  obtain  even  a  general  idea  of  the 
nature  of  the  English  common  law,  it  is  neces- 
sary to  take  into  consideration  the  several  ele- 
ments that  have  combined  to  form  it.  For  it  is 
a  system  that  has  absorbed  into  itself  the  best 
features  of  many  s^^stems — a  fact  that  led  Lord 
Bacon,  at  one  time,  to  speak  of  "our  laws  be- 
coming as  mixed  as  our  language.''  It  is  easy 
to  understand  that  the  same  general  causes  have 
pntduced  both  results. 

If  the  ancient  Britons,  whom  the  Romans  met 
and  mastered  before  the  beginning  of  the  Chris- 
tian era,  had  been  permitted  to  remain   in  un- 


26  THE    COMMON    LAW. 

disturbed  and  isolated  occupancy  of  their  island, 
it  is  impossible  to  even  surmise  what  would  be 
the  character  of  either  the  law  or  the  language 
of  England  at  the  present  time.  Such  was  not 
the  course  of  history,  however,  and  during  the 
first  eleven  hundred  years  of  the  Christian  era 
many  races  struggled  for  supremacy  on  English 
soil.  Foremost  among  them  were  the  Romans, 
the  Picts,  the  Saxons,  the  Danes  and  the  Nor- 
mans, each  of  whom  in  a  greater  or  less  degree, 
left  abiding  traces  of  its  presence  and  sojourn  on 
that  remarkable  island. 

To  w^hat  extent  the  customs  of  the  ancient 
Britons  have  contributed  to  our  modern  law,  it 
is  now  impossible  to  know.  The  little  informa- 
tion that  history  affords  us  concerning  those 
people  indicates  that  they  had  not  emerged  from 
a  state  of  barbarism  when  the  Romans,  under 
Julius  Cjiesar,  invaded  their  island.  That  great 
leader  himself  makes  little  reference  to  the  man- 
ners and  customs  of  the  Britons  whom  he  defeat- 
ed, except  such  as  bore  directly  upon  their  mili- 
tary tactics.  To  him,  fresh  from  his  conquest  in 
Gaul,  they  were  only  so  many  more  barbarous 
tribes  to  be  subjugated,  or,  as  he  Avas  accustomed 
to  politely  express  it,  ''pacified  by  the  Roman 
arms.'' 

Whatever  may  have  been  the  laws  of  the  an- 
cient Britons,  it  does  not  appear  that  they  were 
in  any  material  respect  modified  by  the  Roman 
occupation  of  their  island.    The  Roman  influence 


PHARMACAI.   jrRISPRrnENCE.  l( 

in  that  respect  was  to  be  felt  many  centuries 
later  and  lonu;  after  the  great  ^Yorld  Empire 
had  ceased  to  be  a  living  fact. 

About  the  beginning  of  the  fifth  centur^^,  when 
their  own  final  trouble  and  collapse  began  at 
home,  the  Romans  recalled  their  legions  from 
the  different  quarters  of  the  globe  and  left  the 
Britons  about  as  they  had  found  them  seyeral 
hundred  years  before. 

During  the  sixth  century,  the  Saxons,  a  free 
and  warlike  German  tribe  from  the  neighbor- 
hood of  the  Baltic  sea,  succeeded  in  establishing 
themselyes  firmly  in  the  eastern  part  of  England 
and  soon  became  the  dominant  race. 

The  Angles,  another  tribe  similar  to  the  Sax- 
ons, quickly  followed  the  latter  to  the  coasts  of 
England,  and  hence  are  deriyed  the  names  "Eng- 
land" and  "Anglo  Saxon."  As  the  result  of  the 
two  invasions  just  referred  to,  the  ancient  Brit- 
ons, probably  the  ance>stors  of  the  Welsh,  were 
pressed  back  to  the  western  shores  of  the  island. 

In  the  reign  of  the  Saxon  king,  Alfred  the 
Great,  which  commenced  in  the  year  871,  each 
of  the  several  Saxon  provinces  of  the  kingdom 
followed  its  own  local  customs;  and  these  dif- 
fered so  widely  in  the  different  provinces  that 
the  king  found  it  necessary  to  compile  what  was 
known  as  his  Dome-Book,  a  kind  of  collection  or 
code  of  laws  for  general  use  throughout  the 
realm.  Thus  it  was  that  the  common  law  of 
England  began  to  assume  definite  form  and  char- 
acter. 


28  THE    COMMON    LAW. 

It  should  ])v  noted  at  this  point,  as  bearino- 
upon  the  character  of  tlie  Enjiilish  common  hiw, 
that  the  Saxons  were  a  l)old,  hardy,  and  free  peo- 
ple, and  that  their  laws  partook  essentially  of 
the  character  of  the  men  whom  they  w(M'e  formed 
to  govern.  And  it  was  this  element  of  rugged 
freedom  that  made  the  Saxon  laws  so  dear  to 
Englishmen;  and  to  maintain  them  in  their  pu- 
rity through  the  centuries  that  followed  the  Nor- 
man Conquest,  they  resolutely  opposed  the  en- 
croachments of  tyrannical  kings.  Doubtless,  to 
the  character  of  the  Saxon  laws  backed  by  the 
spirit  of  a  free  people,  more  than  to  any  other 
one  circumstance,  the  English  speaking  people 
of  the  world  owe  their  long,  free  history  and  the 
enviable  freedom  of  their  present  institutions — 
institutions  Avhich  Ave  are  disposed  to  consider 
the  very  best  combinations  of  law  and  liberty 
that  civilization  has  yet  developed. 

King  Alfred's  code  of  laws,  so  carefully  select- 
ed, was  not  destined  to  enjoy  an  altogether  un- 
broken history.  Before  the  reign  of  this  wise 
and  good  king  began,  the  Danes,  who  were  then 
a  rude,  sea-faring  and  piratical  race,  had  com- 
menced their  persistent  and  fierce  incursions. 
With  varying  success  the,y  maintained  a  bloody 
war  against  the  brave  Saxons,  who  used  every 
available  means  to  repel  them  from  their  shores. 

At  last  these  Danish  warriors  succeeded  in 
establishing  themselves  on  English  S(til,  es- 
pecially along  the  eastern  coast  and  in  the  north. 


PHAKMACAl.    jlRISPRUDENXE.  29 

With  tluMii  of  course  they  hrounlit  thoir  own  na- 
tional customs  and  usaii;cs  to  add  another  olo- 
meut  to  the  slowly  developinp;  law  of  England. 
As  a  result,  within  the  immediate  vicinity  of 
Danish  conquest,  which  embraced  a  considerable 
portion  of  the  country,  the  laws  of  Alfred  very 
naturally  fell  into  disuse  for  tlie  time  being. 

Sir  William  Klackstone,  in  his  commentaries 
on  the  laws  of  Enj»land,  speaking  of  the  condi- 
tion of  the  laws  of  that  country  subsequently  to 
the  Danish  invasion  and  establishment,  says: 
"About  the  beginning  of  the  eleventh  century, 
there  were  three  principal  systems  of  laws  pre- 
vailing in  different  districts:  1.  The  Mercen- 
Lage,  or  ]Mercien  laws,  which  were  observed  in 
many  of  the  midland  countries,  and  those  bor- 
dering on  the  principality  of  Wales,  the  retreat 
of  the  ancient  Britons;  and  therefore  very  prob- 
ably intermixed  with  the  British  or  Druidieal 
customs.  2.  West-Saxon  Lage,  or  laws  of  the 
West-Saxous,  which  obtained  in  the  countries  to 
the  south  and  west  of  the  island.  These  were 
probably  much  the  same  with  the  laws  of  Alfred 
above  mentioned,  being  the  municipal  law  of  the 
far  more  considerable  part  of  his  dominions,  and 
particularly  including  Berkshire,  the  seat  of  his 
peculiar  residence.  3.  The  Dane-Lage,  or  Dan- 
ish law,  the  very  name  of  which  speaks  its  origin 
and  composition.  Tliis  was  ])rinci])ally  main- 
tained in  tlie  rest  of  tlie  midhmd  counties,  and 
also   on    the  eastern   coast — the   parts    most   ex- 


30  THE    COMMCW    LAW. 

posed  to  the  visits  of  that  piratical  people.  As 
for  the  very  northern  provinces,  they  were  at  that 
time  under  a  distinct  government." 

About  the  time  referred  to  by  this  eminent  jur- 
ist, the  laws  of  the  kingdom  underwent  another 
collection  and  revision  by  Edward  the  Confessor. 
The  seven  petty  kingdoms  of  the  ancient  hept- 
archy that  for  a  time  maintained  independent 
existence  prior  to  Alfred's  reign,  had  long  since 
lost  their  indentity,  and  together  with  the  paci- 
fied Danish  provinces,  had  merged  into  the  single 
realm  of  England.  Nevertheless,  with  all  this 
progress  toward  political  unity,  there  continued 
to  exist  this  inconvenient  want  of  uniformity  in 
the  laws  of  the  kingdom. 

AVhen  Edward  the  Confessor  occupied  the 
throne,  the  laws  of  King  Alfred  were  still  pre- 
served in  the  South  and  West,  but  the  system 
that  then  prevailed  could  hardly  have  been  rec- 
ognized as  the  simple  and  free  code  of  Alfred. 
While  und(mbtedly  it  still  retained  many  of  the 
original  free  principles  of  the  early  Saxon  laws, 
they  had  suffered  from  contact  with  the  coarser 
and  ruder  customs  of  the  Danish  race,  and  the 
mixture  had  been  still  further  impaired  by  the 
encroachments  of  several  generations  of  kings. 

King  Edward,  known  in  history  as  Edward 
the  Confessor,  commenced  his  reign  in  the  year 
1042.  This  monarch,  whose  early  life  was  pass- 
ed in  Normandy,  among  a  people  more  polished 
than  the  Saxons  were  at  that  time,  is  credited  by 


PHARMACAL   JURISPRUDENCE.  31 

most  Eiiiilisli  historians  with  havinc:  made  a  di- 
pjest  of  tiio  three  systems  of  law  referred  to 
above,  and  having  by  this  means  developed  a 
uniform  system  for  use  throui>hout  his  entire 
kingdom. 

Blackstone  is  of  the  opiniou  that  these  laws, 
generally  mentioned  in  histories  as  the  laws  of 
Edward  the  Confessor,  were  ''no  more  than  a 
neAV  edition,  or  fresh  promulgation  of  Alfred's 
code  or  dome-book,  with  such  additions  and  im- 
provements as  the  experience  of  a  century  and 
a  half  had  suggested." 

AVhether  this  last  revision  or  collection  of  the 
Saxon  laws  is  deemed  to  embrace  the  laws  of 
Alfred,  in  the  form  of  a  new  edition,  or 
to  be  considered  a  new  code  prepared  by 
Edward  the  Confessor,  matters  little  to 
the  present  generation.  The  fact  of  most 
interest  to  us,  and,  indeed,  to  all  the  English 
speaking  world,  remains  tlie  same  in  either  case; 
and  that  is  that  these  laws  expressed  the  free 
principles  of  a  free  people,  and  were  destined  to 
foster  a  spirit  of  freedom  in  whatever  land  they 
might  be  maintained  in  force. 

Such  were  the  laws  of  England  in  the  year  of 
1006,  when,  Edward  the  Confessor  having  died, 
Harold  succeeded  to  the  royal  power.  Then  fol- 
lowed the  couipiest  of  England  by  the  Normans. 

William,  Duke  of  Normandy,  styled  the  Con- 
queror, claimed  to  be  the  rightful  successor  to 
the  crown  of  England,  landed  on  the  coast  with 


32  THE    COMMON    LAW. 

a  gallant  ariiij  of  Norman  knights,  and  there 
met  and  defeated  the  Saxon  army  in  the  great 
battle  of  Hastings.  King  Harold  died  on  the 
battle  field,  and  very  shortly  afterward  Duke 
William  of  Normandy  was  firmly  seated  on  the 
throne  of  England. 

For  many  years  the  Saxons  Mtrnggled  to  main- 
tain the  laws  of  Edward  the  Confessor  against 
encroachments  of  their  Norman  conquerors. 
Their  struggles  were  not  altogether  fruitless, 
but,  of  course,  many  of  the  customs  of  Normandy 
were  forced  upon  the  con(]uered  people. 

During  the  reign  of  King  William,  by  a  gen- 
eral agreement  entered  into  by  both  Saxons  and 
Normans,  what  is  known  in  history  as  the  Feu- 
dal System  was  adopted  as  a  part  of  the  law  of 
the  realm. 

The  feudal  system  is  supposed  to  have  begun 
in  the  military  Policy  of  the  Celtic  nations  of 
northern  Europe,  including  Franks,  Goths, 
Huns^  Vandals  and  Lombards.  Sir  William 
Blackstone,  in  his  commentaries  on  the  laws  of 
England,  claims  that  these  i)eople  brcmght  the 
system  with  them  from  their  northern  homes, 
when  they  overran  Southern  Europe  at  the  de- 
cay of  the  Koman  Empire.  Ridpath,  the  his- 
torian, and  some  others  maintain  that  the  system 
is  of  later  origin,  and  that  it  had  its  birth  and  de- 
velopment among  the  independent  princes  and 
barons  of  medieval  Europe.  AVhichever  theory 
may  be  correct,  it  is  certain  that  this  vigorous 


PHARMACAL    J  URISPRUDKN'CE.  33 

])laii  of  organization  was  in  fnll  operation  in 
Europe  during  tlie  middle  ages,  and  that  by  vir- 
tue of  its  strength  and  efficacy  in  attaining  the 
ends  and  puqioses  of  government,  under  the 
conditions  then  existing,  it  grew  into  almost 
universal   favor  throughout  the  civilized   world. 

William  the  Cuucpieror  did  not  force  the  feudal 
system  upcm  his  Saxon  subjects  in  England,  but 
the  great  barons  of  the  realm  found  that  their 
country  was  placed  at  serious  disadvantage  in 
the  matter  of  military  organization  and  strength, 
as  compared  with  their  warlike  neighbors  on 
the  continent  of  Europe;  and  this  fact,  probably 
more  than  any  other,  led  to  a  favorable  disposi- 
tion among  the  Saxons  toward  a  system  that  was 
proving  itself  to  be  so  etTective  elsewhere. 

It  is  true  that,  owing  to  the  fact  that  many 
of  the  Saxon  nobles  were  slaughtered  at  the  bat- 
tle of  Hastings,  and  during  the  troubled  times 
attending  the  com])lete  s^ibjugation  of  the  coun- 
try, the  lands  thus  left  vacant  by  those  killed  in 
battle  were  apportioned  out  by  the  King  among 
his  Norman  knights  and  held  by  them  on  strictly 
feudal  terms.  However,  this  may  be  regarded  as 
an  incident  of  coiKjuest,  and  the  fact  remains 
that  the  feudal  system  was  not  generally  adopted 
in  England  until  about  twenty  years  after  the 
battle  of  Hastings.  It  was  then  that  the  King 
met  the  nobles  at  a  place  called  Sariini,  an<l  there 
entered,  formally,  into  the  relation  of  lord  and 
vassal  as  prescribed  by  the  rules  of  (he  feudal 
system. 


34  THE    COMMON    LAW. 

It  is  not  witliiu  the  scope  of  the  present  thesis 
to  present  in  detail  the  incidents  attendinii  the 
ftnidal  system,  or  even  the  minor  points  of  tlie 
system  itself,  as  exemplified  in  the  history  of  the 
English  law,  but  for  such  detailed  information 
the  reader  is  referred  to  the  Commentaries  of 
Blackstone,  or  to  some  other  treatise  of  a  like 
comprehensive  nature.  It  will  suffice  to  say  in 
this  place  that  the  feudal  system  is  based  upon 
property  in  land.  It  is  generally  believed  that 
when  the  barbarous  tribes  of  the  North  overran 
Southern  Europe  and  settled  there,  each  conquer- 
ing general  divided  among  his  superior  officers 
the  lands  that  he  had  acquired,  to  be  held  by 
them  in  exchange  for  military  services.  If  tlie 
general  at  any  time  engaged  in  war,  it  was  the 
duty  of  each  officer  thus  holding  lands  to  furnish 
him  with  a  certain  number  of  men,  arms,  etc.,  in 
proportion  to  the  amount  of  land  held.  It  was 
usual  for  these  superior  officers  to  apportion 
among  their  subordinate  officers  the  land  thus 
received  from  their  general,  and  even  among 
some  of  the  most  deserving  of  their  common  sol- 
diers whom  they  might  wish,  especially,  to  bind 
to  their  seiwice. 

It  is  apparent  that  with  society  organized  on 
sucli  a  plan  as  that  outlined  above,  it  was  easy 
to  place  an  army  on  a  war  footing.  A  solemn  ob- 
ligation, mutual  in  its  character,  was  entered 
into  by  lord  and  vassal,  giver  and  receiver  of 
land.     "Everv  receiver  of  land  or  feudatorv,  was 


PHAKMACAI.    IlRISPRl'DENCE.  35 

tliei'ofore  bound,  whtMi  called  upon  Itv  his  hcne- 
fju-toi"  or  ininiediato  lord  of  his  feud  oi-  fee,  to  do 
all  in  his  i)o\ver  to  defend  him.  Such  benefactor 
or  lord  Avas  likeAvise  subordinate  to,  and  under 
the  coniniand  of,  liis  ininiediate  benefactor  or 
superior ;  and  so  upwards  to  the  prince  or  general 
himself;  and  the  several  lords  Avere  also  recipro- 
cally bound,  in  their  respective  gradations,  to 
])r'otect  tlu'  ]>i)ssessions  they  had  given.  Thus  the 
feudal  connection  was  established,  a  i)roper  mili- 
tary subjection  was  introduced,  and  an  army  of 
feudatories  Avas  always  ready  enlisted,  and  mu- 
tually prepared  to  muster,  not  only  in  defense 
of  each  man's  several  property,  but  also  in  de- 
fense of  the  Avliole,  and  of  eA^ry  part  of  this  their 
neAvly  acquired  country;  the  prudence  of  Avhich 
constitution  AA'as  soon  sufficiently  Aisible  in  the 
strength  and  spirit  Avith  Avhich  they  maintained 
their  conquests." 

The  circumstances  under  Avhicli  the  English 
people  took  upon  themselves  feudal  relations  AA^ere 
someAA'hat  different,  it  Avill  be  remembered,  from 
those  outlined  above.  In  the  case  of  the  English, 
those  AA'ho  already  owne<l  the  soil,  by  a  general 
agreement,  surrendered  their  title  to  the  King  as 
lord  of  the  fee;  after  which  they  receiAed  their 
lauds  l)ack  by  grant  from  him,  thereby  becoming 
his  A'assals  or  tenants.  The  entire  kingdom  was 
surveyed  at  that  time  and  divided  into  sixty 
thousands  knights  fees  or  grants  to  be  held  by 
as  manv  knights  or  warriors. 


36  THE    COMMON    LAW. 

This  bloodless  rcvohitiou  ^avc  England  a 
sti'oiiii'  military  or«j;auizatioii,  but  it  also  opened 
the  door  to  the  eucroachineuts  and  abuses  of 
tyrannj^,  and  the  kings  of  the  Norman  line  were 
not  slow  to  avail  themselves  of  the  openinf*-.  The 
laws  of  Alfred  and  of  Edward  the  Confessor  were 
overridden,  while  the  lords  and  knights  of  the 
kingdom  were  treated  as  though  they  did,  in  fact, 
owe  everything-  to  their  sovereign  and  held  their 
lands  through  his  generosity,  pure  and  simple. 
This  state  of  things  became  intolerable  to  both 
Saxon  and  Norman  and  culminated  in  the  reign 
of  King  John,  when  at  Kunnymede,  in  the  year 
1215,  they  forced  that  infamous  coward  and 
tyrant  to  restore  to  them  their  ancient  liberties. 
This  was  done  by  compelling  the  King  to  sign 
that  most  celebrated,  probably,  of  all  legal  docu- 
ments. Magna  Charta. 

This  great  Charter,  signed  by  King  John,  was 
nothing  more  nor  less  than  a  written  list  or  char- 
ter of  those  rights  which  these  good  subjects  of 
His  Majesty  deemed  themselves  entitled  to  enjoy 
as  free  Englishmen.  Many  of  the  princi])les  of 
that  celebrated  document  are  reiterated  in  the 
Constitution  of  these  Ignited  States  of  America. 
Notably,  the  Twenty-ninth  Chapter,  guaranteeing 
trial  hy  jury,  provides  that  life,  liberty  and  prop- 
erty shall  be  forfeited  only  by  judgment  of  the 
subject's  peers  or  by  the  law  of  the  land,  and  that 
justice  and  right  are  noi  (o  be  sold,  denied,  or  de- 
ferred. 


^IIAR^rACAI.  jruispurnENCE.  37 

With  lilt'  (Ireal  (Minvlcr,  F.iiuhnid  vccovcivd 
Mild  enlarged  flic  lihcilics  en  joyed  hcCorc  llic  Xor- 
iiijui  eoiupicsl,  iiiidci-  llic  laws  of  l<id\\ard  llic 
( 'oiifcssor. 

\\'li(Mi  tlic  Auu'iicaii  ((doiiisls  declared  tlieir 
iiidei)eiideiice  of  (Jreat  Britain  and  finally  es- 
tablished the  same,  the  fenthil  i-clatioii  was  abso- 
lulely  severed,  the  Crown  lost  all  claim  npon  co- 
lonial lands,  and  each  of  the  thirtct'ii  colonies  be- 
came the  absolute  o\\  ner  of  the  lei-ritory  that  it 
occupied. 

Each  of  the  .Vnierican  colonies  or  States  sold 
her  lands  for  the  best  price  she  could  i^et,  and,  for 
a  stated  pecuniary  consideration,  i>ave  an  abso- 
lute title  by  deed  or  i^ateiit,  in  which  there  is 
Avritteu  no  stipulation  for  fealty,  esclieat,  rent- 
service  or  other  feu(hil  consideration.  Touchin<i 
this  point,  in  the  Pennsylvania  case,  Wallace  vs. 
Harmstad,  the  Court  says,  "The  State  is  the  lord 
])aramount  as  to  no  man's" land.  When  any  of  it 
is  wanted  for  public  purposes,  the  State,  in  vir- 
tue of  her  political  sovereignty,  takes  it,  but  she 
compels  herself,  or  those  who  claim  under  her,  to 
make  full  compensation  to  the  owner.'' 

The  power  of  the  State  to  take  private  jirop- 
erty  for  pulilic  use,  referred  to  in  the  last  para- 
graph, is  termed  the  right  of  eminent  domain, 
and  is  an  adjunct  of  sovereignty.  This  right  is 
based  upon  political  necessity,  and  it  has  no  rela- 
tion to  the  feudal  principle  that  the  s.)vereign  is 
the  owner  of  the  land.     The  right  of  eminent 


38  ROMAN    CIVIL    LAW. 

domain  may  be  exercised  by  a  State,  and  also  by 
the  United  States  as  to  private  property  within 
the  limits  of  its  own  territory. 

Little  remains  to  us  now  of  the  feudal  system, 
great  and  far-reaching  as  once  it  was,  except  a 
few  words  and  forms  out  of  which  the  spirit  and 
meaning  have  passed,  but  there  still  exists  the 
necessity  for  knowing  something  of  its  nature  in 
order  to  understand  the  law  as  it  now  is. 

Roman  Civil  Law. 

Another  great  formative  element  of  modern 
jurisprudence,  deserving  careful  thought,  is  the 
Roman  Civil  Law. 

This  body  of  laws,  as  it  has  come  down  to  us, 
was  collected  and  compiled  about  the  year  523  by 
the  lawyer  Tribonian,  and  his  assistants,  under 
the  commands  of  the  Emperor  Justinian,  who 
then  ruled  what  is  known  in  history  as  the  East- 
ern Empire. 

From  the  vast  accumulation  of  more  than  a 
thousand  years,  Tribonian  and  his  associates  se- 
lected, digested,  and  arranged  for  convenient  use 
the  legal  precepts  and  principles  developed  dur- 
ing the  entire  political  history  of  Rome,  both  re- 
publican and  imperial. 

This  body  of  Roman  law,  or  corpus  juris 
civilis,  thus  digested,  was  published  during  the 
reign  of  Justinian,  but  under  later  emperors  fell 
into  disuse  and  was  lost  sight  of  until  the  twelfth 
century,  when  a  copy  of  the  digests  was  found  at 


PHARMACAL    JURISPRUDEN'CE.  39 

the  Italiau  city  of  Ainalfi.  These  dioests,  or  pan- 
dects, consisted  of  fifty  books  and  contained  a  me- 
thodical arrangement  of  ''the  opinions  and  writ- 
ings of  eminent  hiwyers,"  whose  voices,  raised  in 
that  old  classic  forum  during  the  centuries  when 
"The  Eternal  City,"  by  the  right  of  unmatched  in- 
telligence and  power,  filled  the  proud  position  of 
(^ueen  of  a  world,  were  listened  to  with  the  re- 
spect ever  accorded  to  those  who  speak  with 
authority. 

The  finding  of  this  copy  of  the  Justinian  or 
Tribonian  digests  of  the  Koman  law  produced  a 
marked  revival  of  interest  in  their  study.  The 
principles  that  before  may  have  seemed  vague 
and  traditional  as  to  meaning  and  origin  were 
at  last  presented  to  the  world  again  in  clear  and 
authoritative  text.  As  a  result,  the  system  was 
soon  adopted  by  several  of  the  European  nations, 
yet  it  is  only  in  these  days  of  complex  civilization 
and  great  commonwealths  that  the  learning  and 
genius  of  the  civil  law  have  been  appreciated 
"fully. 

This  extensive  field  of  legal  learning  was,  prob- 
ably, not  unknown  in  England  in  the  days  of  the 
Norman  Conquest,  but  was  more  generally 
studied  and  understood  in  later  times.  The  meet- 
ing of  these  two  great  systems  of  law,  the  early 
English  and  the  Roman,  may  be  compared  to  the 
meeting  of  two  vast  rivers.  The  former,  issuing 
from  mountain  fastnesses,  is  irregular  but  broad 
in  outline,  strong,  turbid,  and  whitened  by  many 


40  RO>rAN    CIVIL    LAW. 

a  reef  and  waterfall ;  and  the  bold  contonr  of  its 
sliores,  nnworn  by  ])oi)nlation,  marks  a  channel 
wide  and  deep  enouiiii  to  bear  the  nnited  rivers  of 
a  world.  While  the  latter  sweeps  in  from  A'ast 
and  fertile  valleys,  o'er-shadowed  by  the  silent 
majesty  of  dead  empires ;  its  banks,  wherein  every 
point  has  been  worn  to  a  curve  of  grace,  and 
every  reef  chiseled  to  absolute  smoothness,  oleam 
with  the  polish  of  a  thousand  years.  Chaste, 
even  severe,  in  the  utter  refinement  of  its  outlines, 
it  is  silent,  smooth,  and  clear,  yet  pregnant  with 
suggestions  of  thrilling  depths  and  irresistible 
force. 

Just  as  the  contemplation  of  classic  models 
has  tended  toward  the  tdevation  and  refinement 
of  modern  art,  and  as  the  study  of  the  ancient 
models  of  literature,  in  the  ({reek  and  Latin  lan- 
guages, has  polished,  refined,  and  elevated  the 
standards  of  literature  in  all  modern  languages, 
so  has  the  study  of  the  laws  of  ancient  IJome 
added  strength  and  luster  to  the  jurisprudence  of 
modern  times.  Nor  is  this  fact  surprising,  when 
we  take  into  consideration  that  for  seven  hundred 
years,  commencing  Avith  the  close  of  Grecian  su- 
premacy in  the  third  century  before  Christ,  and 
extending  to  the  time  when  the  northern  barba- 
rians became  nuisters  of  the  decaying  empire,  in 
the  fifth  century  of  the  Christian  era,  all  that  the 
world  possessed  of  learning  and  refinement  was 
centered  in  Rome,  its  capital  and  metropolis. 

The  ninet(HMith  centurv  looks  back  two  thou- 


PIIAR^rACAI.    JURISPRUDENCE.  41 

sand  years  for  its  masters  in  art  and  literature. 
In  the  matter  of  inventive  ,s>-enius,  and  aloni;-  the 
lines  of  scientific  research,  no  man  need  doul)t 
that  we  have  passed  the  hii;h-tide  mark  of  the 
classic  aoe;  bnt,  in  delicate  accuracy  of  execution 
and  expression  we  bow  to  the  attainments  of  that 
older  civilization,  and  do  not  hesitate  to  hoi-row 
from  it  our  ultimate  thought  in  the  simple  and 
sublime. 

As  it  is  in  art  and  literature,  so  it  is  in  the 
law.  It  is  beyond  doubt  that  we  have  passed  the 
li(unans  in  the  streuiith  and  flexibility  of  our  po- 
litical institutions ,  the  attainment  of  social 
equality  on  stalde  principles,  and  in  all  things 
that  tend  to  insure  to  Ihc  individual  the  widest 
possible  range  of  lawful  liberty.  Also,  we  enjoy 
the  advantage  of  feeling  tliat  our  systeui  of  law 
guarantees  our  liberties,  by  insuring  to  us  the 
power,  Avithin  (mrselves,  to  maintain  those  lib- 
erties. And  yet,  with  aJl  this,  we  owe  au  incal- 
culable debt  to  that  other  and  ancient  republic, 
the  commonwealth  of  Home,  and  to  the  empire 
into  which  that  republic  merged,  for  the  ac- 
curacy, finish,  and  tried  sim])licity  of  the  legal 
])rinciples  that  have  contributed  so  mucli  to  make 
all  these  things  possible  to  us. 

During  the  dark  ages  that  followed  tlie  wi'<'ck 
of  Koman  civilization,  classic  art,  literature  and 
law,  alike  lay  for  centuries  unnoticed  and  un- 
tliought  of,  while  warring  tribes  and  nations 
stcu'med  over  them   from  sea   to  sea.      Witli  the 


42  ROMAN    CIVIL    LAW. 

breakiiii*-  up  of  that  aiu-ieiit  civilization,  society 
seemed  retiiniini»-  to  primeval  eliaos.  The  fiery 
descendants  of  Goth,  Hnn,  Vandal  and  Lom- 
bard raged  over  Europe  and  fought  like  liungry 
tigers  for  lands  that  had  once  been  the  abiding- 
places  of  culture  and  refinement.  Civilization 
was  drowned  in  a  deluge  of  barbarism.  Floating 
and  tossed  about  on  the  waves  of  that  deluge,  the 
records  of  the  highest  achievements  that  the 
thought  and  experience  of  the  world  had  yet  at- 
tained were  only  as  driftwood  in  the  eyes  that 
remained  to  view'  theuL  The  appeals  of  beauty, 
elegance,  and  learning  met  alike  with  no  response 
from  the  iron  men  of  that  terrific  social  cata- 
clysm. 

During  those  centuries  of  intellectual  dark- 
ness, and  until  the  revival  of  learning  in  modern 
times,  there  was  no  nation  or  people  at  any  place 
on  the  entire  earth  capal)le  of  using  and  appre- 
ciating either  the  art,  the  literature,  or  the  laws 
of  Rome.  It  is  true  that  the  Eastern  Empire,  the 
Greek  bi'anch  of  the  Roman  world  with  its  capital 
at  Constantinople,  may  be  regarded  as  an  excep- 
tion, but  of  doubtful  character,  to  the  statement 
just  made,  since  it  maintained  for  some  centuries 
the  semblance  of  Roman  civilization  after  the  fall 
of  Rome.  However,  its  life  was  a  mere  feeble  old 
age,  and  there  existed  in  its  people  neither  the 
ambition  nor  the  power  to  impress  Roman  ideas 
or  custoiiis  \\\n)n  the  rude  tribes  around  thcuL 


PHARMACAL    J  rklSPRUDENCE.  43 

Tliouiili,  in  appearance,  the  learning;-  of  classi- 
cal Rome  was  destroyed  and  lost  to  the  world, 
it  was  not  so  in  fact.  It  was  like  a  forest  fire 
when  struck  by  a  cyclone.  At  first  the  flames 
seem  to  have  been  extinonislied,  but,  in  fact,  they 
have  only  been  scattered.  The  prolific  embers, 
whirled  away  by  the  wind,  have  kindled  on  a 
hundred  hillsides,  and  after  an  interval  of  smoke 
and  confusion  there  are  a  hundred  fires  instead 
of  only  one.  It  is  no  lonoer  a  local  blaze,  but  the 
whole  vast  wilderness  is  in  flames. 

Classic  Latin  has  enriched  the  speech  of  all 
the  civilized  world,  as  classic  learning  has  en- 
riched its  thought.  Tlie  church  of  Rome,  active 
and  aggressive  throughout  all  the  Middle  Ages, 
was  undoubtedly  the  chief  agent  in  disseminat- 
ing, among  the  fragmentary  nations  of  that  time, 
the  heritage  left  by  the  deceased  empire.  It  is 
through  this  subtile  and  powerful  agency  that  we 
may  trace  the  advent  of  the  Roman  civil  law  to 
the  shores  of  England.  The  representatives  of 
that  great  spiritual  organization  were  every- 
where, and  constituted,  for  centuries,  the  only 
learned  body  of  men  that  the  world  possessed. 
In  England  the  church  had  its  tribunals,  called 
ecclesiastical  courts,  for  the  trial  of  many  causes 
over  which  it  claimed  and  was  allowe<l  jiu-isdic- 
tion,  and  in  those  tribunals  the  rules  of  tlic  civil 
law  prevailed.  Likewise,  in  all  English  military 
and  admiralty  courts  and  in  the  courts  of  the  two 
great  universities,  the  civil  law  was  used. 


44  Ro^rAx  civii.  law. 

Some  of  the  great  English  commentators  have 
seemed  but  little  disposed  to  admit  that  the  Eng- 
lish common  law  owes  any  appreciable  debt  to 
the  Roman  civil  law.  It  may  be  truthfully  said, 
however,  that  many  things  in  the  law  as  it  now  is, 
in  both  England  and  America,  tend  strongly  to 
prove,  not  only  that  such  a  debt  exists,  but,  also, 
that  it  is  of  vast  proportions. 

To  what  extent  the  study  of  this  finished  legal 
system  of  Rome,  by  both  bench  and  bar,  in- 
fluenced the  interpretation  of  the  early  Saxon 
laws  in  the  common  laAv  courts,  it  is  impossible  to 
know,  nor  can  we  more  than  conjecture  as  to  the 
influence  of  the  same  line  of  study  on  the  minds 
of  those  who  framed  the  early  English  statutes. 
We  may  at  least  hazard  the  opinion  that  during 
those  earlier  centuries,  students  of  the  law  pos- 
sessing scholarly  instincts  were  no  more  disposed 
to  refrain  from  applying  themselves  to  this  great 
source  of  learning  than  th(\v  are  at  the  present 
time. 

From  this  brief  discussion  of  the  sources  of 
the  English  common  law,  it  appears  that  when 
it  was  brought  over  to  America  by  our  ancestors 
it  was  a  fusion  of  the  surviving  principles  of  three 
distinct  and  important  systems,  i.  e. :  The  an- 
cient Saxon  customs  as  modified  by  later  English 
statutes,  the  feudal  system  of  the  Middle  Ages, 
and  the  Ronmn  Civil  Law.  It  appears  also,  that 
the  customs  of  the  ancient  Britons,  the  Danes, 
and  the  Normans  are  in  evidence  as  miuor  con- 
tributions to  the  oeueral  fund. 


PHARMACAI.     HKISI'RUDENrE.  45 

We  have  observed  tliat  tlie  feudal  system,  with 
a  barbaric  streDi»tli  iMMiiliar  to  itself,  overrcxle 
the  civil  law  duriug  the  imkUt  ceuturies  inter- 
venino-  between  the  downfall  of  the  Roman  Em- 
pire and  the  revival  of  learning-  in  modern  times. 
We  have  seen  the  force  and  vitality  of  the  Koman 
civil  law  manifest  themselves  by  surviving  the 
death  of  feudalism,  and  respondinu'  to  the  needs 
of  a  civilization  two  thousand  years  later  than 
that  by  which  its  principles  were  developed.  A\'e 
have  seen,  also,  that  the  early  Saxon  customs 
served  as  a  strono-  framework  of  law,  ca])able  of 
absorbing  and  applying  to  its  substantial  adorn- 
ment the  serviceable  principles  of  the  two  other 
great  systems,  while  yet  maintaining  its  own  orig- 
inal free  elements  and  identity. 

The  common  law,  as  we  now  tind  it,  may  be 
compared  to  a  sturd}'  oak  tree.  Its  trunk  and 
first  great  branches  are  Saxon.  Many  important 
smaller  branches  have  been  grafted  in  by  English 
and  American  statutes.  The  classic  Iloman  ele- 
ment appears  in  the  glossy  leaves,  the  unity  of 
parts,  and  the  symmetry  of  outline.  Lastly,  the 
presence  of  feudalism  may  be  traced  in  the  pe- 
culiar forms  presented  in  some  of  the  older 
branches;  but  most  clearly  in  the  knots  and 
cicatrices  that  mark  where  strong  lind)s  have 
been  lopped  away.  In  the  days  of  Alfred,  this 
great  tree  was  Init  a  shrub,  well  pruned  and  cul- 
tivated by  that  wise  king.  The  immense  size  that 
it   has  since   developed,    wilbout   b»ss   of   citbcr 


46  ROMAN    CIVIL    LAW. 

vigor  or  symmetry,  proves  how  well  its  nature  is 
adapted  to  the  atmosphere  of  a  great  civilization. 

The  possibilities  for  the  groAvth  and  expansion 
of  the  law  in  the  fntnre  are  hounded  only  by  the 
limits  of  civilization  itself,  and  until  the  latter 
shall  have  reached  its  ntmost  growth,  the  law,  in 
the  process  of  its  application  to  cases,  will  con- 
tinue to  expand  to  meet  the  needs  of  every  pos- 
sible condition  of  society.  New  branches  of  ju- 
risprudence, growing  out  of  legal  questions  and 
conditions,  developed  by  the  advent  of  new^  in- 
dustries and  professions,  are  claiming  the  atten- 
tion of  the  lawyer,  the  judge  and  the  writer ;  and 
still  other  new  branches  must  follow  as  the  in- 
evitable result  of  progress. 

The  rapid  growth  of  the  law,  referred  to  above, 
seems  to  point  to  a  more  and  more  complex 
condition  of  legal  science;  yet  we  think,  paradox- 
ical as  it  may  sound,  that  its  real  trend  is  toward 
simplicity.  It  is  true  that  the  number  of  specific 
rules  is  increasing,  but,  on  the  other  hand,  the 
tendency  of  these  rules  to  group  themselves  under 
certain  great  generic  principles  is  becoming  each 
year  more  apparent;  and  we  think  that  the  latter 
fact  more  than  offsets  the  former. 

While  it  may  be  assumed  that  the  law  intends 
equal  justice  to  all,  it  is  manifestly  impossible 
to  make  a  separate  rule  to  meet  the  case  of  each 
individual ;  and  sometimes,  owing  to  peculiar 
circumstances,  hardship  and  injustice  result 
from  the  application  of  the  general  rule  to  a  spe- 


PHARMACAI.    H'RISPRUDENCE.  47 

cific  cas^e.  Thus,  for  example,  under  the  common 
hiw,  if  Smith  sells  1o  Jones  a  tract  of  land,  the 
former  holds  the  leiial  title  until  a  deed  is  exe- 
cuted by  him  and  delivered  to  the  latter.  Now,  if 
Smith  refuses  to  make  the  deed,  there  is  no  power 
in  the  law  to  compel  him  to  do  it.  Jones'  remedy 
at  common  law  is  siniplA'  an  action  on  the  con- 
tract for  the  recovery  of  damaoes  (assuming,  of 
course,  that  the  contract  has  been  so  executed  as 
to  be  binding).  But,  even  supposing  that  the 
case  is  one  in  Avliich  Jones  may  recover  damages 
by  law,  this  is  not  an  adequate  remedy,  since  he 
is  entitled  to  have  the  land  itself,  and  this  the 
law  cannot  give  him.  The  law  intends  that  which 
is  right,  in  its  general  rules  as  to  what  shall  be 
required  to  constitute  a  conveyance  of  real  prop- 
erty, but  it  so  happens  that,  in  the  case  under  con- 
sideration, the  application  of  those  general  rules 
leaves  Jones  smarting  under  a  wrong  for  which 
the  law  affords  him  no  adequate  remedy.  As 
another  illustration,  suppose  that  a  guardian 
taking  advantage  af  the  confidential  relations 
existing  between  himself  and  his  ward,  purchases 
from  the  ward,  on  the  very  next  day  after  he  has 
attained  his  legal  majority,  a  valuable  tract  of 
land  or  other  j^roperty  at  an  unreasonably  low 
price.  Under  the  rules  of  the  common  law,  the 
title  would  irrevocably  pass  to  the  guardian,  and 
the  ward  would  be  com])elled  to  bear  the  loss  re- 
sulting from  his  iiiex])erience  and  the  l)etrayal  of 
his  confidence.     Again,  under  the  common  law, 


48  EQUITY. 

if  A  owed  a  sum  of  iiioiiev  to  B,  and  B  assigned 
or  transferred  his  claim  to  C,  the  last  could  not 
maintain  an  action  against  A  for  the  collection 
of  the  debt.  The  common  law  did  not  recognize 
any  legal  title  in  C  to  the  money  thus  owed  by  A 
to  B,  on  the  theory  that  it  would  be  wrongfully 
encouraging  litigation  to  ])ermit  C  to  prosecute 
a  suit  on  such  a  claim. 

There  are  many  cases  in  which  the  rules  of  the 
common  law  can  afford  no  remedy  whatever,  and 
many  others  in  which  the  remedy  provided  is 
neither  speedy  nor  adequate.  A  rule  of  law  is, 
in  its  very  nature,  inflexible,  making  it  impossible 
to  modify  it  so  as  to  meet  unusual  conditions; 
and  this  quality  of  inflexibility  must  sometimes 
cause  the  law,  however  wisely  framed,  to  work 
injury  where  only  good  was  contemplated. 

During  the  earlier  history  of  England,  relief 
from  the  hardships  referred  to  as  resulting  from 
the  defects  of  the  law,  was  sought  through  direct 
appeal  to  the  sovereign-,  with  more  or  less  but  un- 
certain effect.  The  special  remedies  thus  admin- 
istered by  the  sovereign  were  the  beginnings  of 
that  great  department  of  jurisprudence  after- 
ward known  as  equity,  to  the  consideration  of 
which  the  attention  of  the  reader  is  now  asked. 

Equity. 

It  may  be  said  that  equity,  considered  in  its 
relation  to  the  common  law,  has  never  been  satis- 
factorilv  defined.     The  difficultv  which  attends 


PHARMACAL    JURISPRUDENCE.  49 

every  attempt  to  shape  a  scientific-  definition  of 
eqnity  arises  partly  from  the  natnre  of  the  snb- 
ject  itself,  and  partly  from  the  arbitrary  restric- 
tions Avhich  hare  been  placed  upon  it  in  the 
practice  of  equity  courts.  Its  principles,  in  the 
abstract,  are  as  broad  and  comprehensive  as  those 
of  simple  ri^iit ;  while  the  restrictions,  which  hem 
them  about  in  practice,  are  so  numerous  and  di- 
versified that  they  seem  to  defy  every  effort  to 
throw  around  them  the  limitations  of  a  true  and 
sufficient  definition. 

Equity,  in  its  general  use,  is  said  to  mean  "the 
quality  of  being  equal  or  fair;"  "fairness  or  im- 
partiality exercised  in  any  and  all  relations  and 
circumstances;"  "equality  of  rights;'''  "equal  jus- 
tice," etc.  While  in  its  relation  to  the  law  equity 
has  been  defined  as,  "the  system  of  collateral  or 
supplemental  law  administered  by  courts  of 
equity."  Professor  Bispham,  whose  recent  treat- 
ise on  this  department  of  jurisprudence  has 
been  well  received  by  the  legal  profession,  says: 
"Equity  is  that  system  of  justice  which  was  ad- 
ministered by  the  High  Court  of  Chancery  in 
England  in  the  exercise  of  its  extraordinary  ju- 
risdiction." He  says  further :  "This  definition  is 
rather  suggestive  than  precise  and  invites  in- 
quiry rather  than  answers  it.  But  this  must 
necessarily  l)e  so." 

It  is  held  by  many  able  jurists  that  any  at- 
tempt, in  a  definition,  to  express  the  nature  of 
equity  as  a  department  of  jurisprudence,  beyond 


50  EQUITY. 

what  may  be  implied  in  the  definitions  given 
above,  mnst  prove  to  be  misleading-.  Certain  it 
is  that  these  definitions  leave  us  quite  in  the  dark 
as  to  the  nature  of  the  subject  intended  to  be  de- 
fined, and  utterly  fail  to  distinguish  its  principles 
from  those  of  the  law  in  general. 

The  last  of  the  great  trio  of  Greek  philosophers 
— Socrates,  Plato  and  Aristotle — over  three  hun- 
dred years  before  the  beginning  of  the  Christian 
era,  gave  to  the  world  a  definition  of  equity  that 
has  served  for  over  two  thousand  years  as  a  basis 
for  what  we  believe  to  be  the  best  definitions  of 
that  department  of  jurisprudence.  Aristotle  de- 
fined equity  as  "the  correction  of  the  law,  where- 
in it  is  defective  by  reason  of  its  universality." 
We  believe  that  the  consensus  of  opinion  as  to 
this  definition  is  that  it  is  true  but  insufficient. 
It  certainly  suggests  the  real  nature  of  the  sub- 
ject and  also  the  reasons  that  led  to  the  estab- 
lishing of  the  High  Court  of  Chancery  in  Eng- 
land. It  lacks,  however,  the  limiting  words 
necessary  to  restrict  the  exercise  of  this  correct- 
ive principle  to  that  peculiar  system  of  princi- 
ples and  rules  which  Avas  actually  developed  by 
the  above-named  court  in  the  exercise  of  its  ex- 
traordinary functions,  and  which  has  served  to 
define  the  jurisdiction  and  principles  of  modern 
equity  practice  in  both  England  and  America. 

The  fact  seems  to  be  that  the  "system  of  jus- 
tice," called  equity,  that  grew  up  in  the  High 
Court  of  Chancerv  through  the  practice  and  ex- 


PHARMACAL    JURISPRUDENCE.  51 

perieuce  of  centuries,  becaiue  in  time  so  strong 
and  complete  in  itself  as  to  establish  a  distinct 
identity,  quite  independent  of  the  original  or  gen- 
eral meaning  of  the  word.  In  other  words,  while 
preserving  something  of  its  original  sense,  it  has 
so  far  overruled  that  original  sense  as  to  give  to 
the  word,  in  its  relation  to  jurisprudence,  a  new 
meaning.  It  may  be  doubted  that  the  conditions 
just  stated  should  be  deemed  sufficient  to  jus- 
tify a  ^definition  that  entirely  ignores  the  nature 
of  the  thing  defined,  and  recommends  to  the  in- 
quirer the  pursuit  of  a  legal  education  in  the 
study  of  chancery  practice,  as  an  answer  to  his 
question.  Such  a  doubt  would  not  be  unnatural 
and  would  very  reasonably  lead  to  the  suggestion 
that  some  modification  of  the  definition  given  by 
Aristotle  might  be  so  combined  with  one  in  the 
nature  of  that  given  by  Professor  Bispham,  as 
to  convey  in  a  few  words  at  least  some  glimmer- 
ing of  the  present  meaning  of  equity. 

For  the  purposes  of  this  thesis,  we  shall  con- 
sider equity  as  that  system  of  jurisprudence 
which  has  for  its  object  the  correction  and  reason- 
able interpretation  of  the  law,  within  the  limits 
observed  by  the  High  Court  of  Chancery  of  Eng- 
land and  modern  courts  of  equity;  and  it  em- 
braces such  other  features  of  the  administration 
of  justice  as  have  been  committed  to  the  juris- 
diction of  those  courts. 

Since  the  jurisdiction,  (that  is,  the  power  to 
hear  and  determine  causes,)  and  the  procedure 


52  EQUITY. 

of  the  Hijih  Court  of  Chaiu-ery  of  Eiioland  have 
(U^teriuiued  to  a  mreat  extent  the  limits  and 
eharaeter  of  modern  equity  i)raetiee,  it  will  be 
])i*oper  to  present  here  a  brief  statement  as  to  the 
liTowth  and  power  of  that  aniiust  tribunal. 

The  great  civilizations  of  anticinity  felt  the 
need  of  equity  to  mend  the  defects  and  soften  the 
rigors  of  the  law.  The  Greeks  were  familiar  with 
its  principles,  as  evidenced  by  the  scholarly  defi- 
nition of  Aristotle.  The  Romans  developed  an 
extensive  and  highly  finished  system  of  equity 
jurisprudence  which,  doubtless,  contributed 
greatly  to  the  formation  of  the  English  system. 
Concerning  the  latter,  Bispham  says:  "The 
Chancellor,  moreover,  was  generally  an  ecclesi- 
astic; and  to  the  churchmen,  in  those  days,  the 
learning  of  the  civil  law,  to  which  the  common 
law  is  so  much  indebted,  was  principally  con- 
fined." 

Before  the  establislnnent  of  an  ecjuity  c(mrt  in 
England  this  extraordinary  jurisdiction  or  power 
was  in  the  king  and  his  council.  And  when  a 
man  was  suffering  from  a  wrong  for  which  the 
law  courts  could  afford  no  remedy,  he  sought  re- 
lief by  petition  to  the  king.  For  instance,  if  he 
desired  to  have  a  defective  deed  or  other  instru- 
ment reformed,  a  real  interest  in  property  pro- 
tected against  him  v.iio  held  the  legal  title,  a 
fraudulent  conveyance  set  aside,  or  relief  from  an 
accident  or  mistake,  there  being  no  hel])  in  the 
hiw  in  such  cases,  his  only  hope  was  that  the 


PHARMACAI.    JUKISPRrnKXCE.'  53 

king  and  his  council,  upon  hearing  his  case  and 
being  satisfied  that  the  law  afforded  no  remedy, 
would,  as  a  matter  of  favor,  not  of  right,  see  that 
justice  was  given  him.  Down  to  the  present  time, 
in  equity  practice,  the  complaint  or  bill  ends  with 
a  prayer  for  relief,  and  not  a  demand  for  judg- 
ment as  in  courts  of  law. 

These  petitions  for  royal  favor  and  interfer- 
ence on  behalf  of  unfortunate  subjects  of  the 
king,  grew  more  numerous  with  the  passing- 
years  and  in  process  of  time  became  burdensome. 
For  this  reason  the  king,  in  his  turn,  sought  re- 
lief by  passing  these  onerous  duties  over  to  his 
chancellor. 

The  office  of  chancellor  existed  under  the  em- 
perors of  Rome,  and,  presumably  in  deference  to 
the  customs  of  the  Great  Empire,  was  instituted 
and  maintained  by  most  nations  of  Europe  as 
well  as  by  England.  In  the  latter  country  the 
chancellor  is  a  member  of  the  king's  privy  coun- 
cil, the  keeper  of  the  great  seal  and,  probably,  the 
most  important  personage  in  the  kingdom  outside 
of  the  royal  family. 

In  the  manner  stated  above  it  is  believed  that 
the  chancellors  of  England  first  acquired  their 
judicial  character;  and  that,  in  its  way,  began 
the  history  and  high  functions  of  that  great 
equity  tribunal,  known  throughout  the  world  as 
the  High  Court  of  Chancery  of  England. 

From  the  foregoing  statement  as  to  the  origin 
of  English  equity  practice,  it  may  be  gathered 


54  EQUITY. 

that,  before  an  equity  court  existed  in  England, 
many  cases  arose  in  which  the  common  law 
courts  Avere  unable  to  administer  justice;  that 
persons  seeking  relief  in  such  cases  were  under 
the  necessity  of  appealing  to  the  king,  as  the  only 
one  possessing  the  requisite  power  to  help  them ; 
and  that  relief  was  granted  in  such  cases  only  as 
were  outside  of  the  power  or  jurisdiction  of  the 
courts  of  the  law. 

The  facts  stated  in  the  last  paragraph  indicate 
the  general  nature  of  equity  jurisprudence  as  it 
existed  in  England  in  its  earlier  stages  of  de- 
velopment; and  they  fairly  illustrate  the  work- 
ings of  its  underlying  principle  as  we  find  it 
expressed  in   Aristotle's  definition. 

When,  with  the  advance  of  time,  the  High 
Court  of  Chancery  became  more  formal  and  set- 
tled in  its  practice  as  a  regular  tribunal  of  jus- 
tice, the  chancellor  began  to  follow  precedents 
more  closely  than  was  done  at  the  beginning.  In 
fact,  there  grew  up  among  these  equity  judges 
the  same  custom  which  has  always  prevailed  in 
the  law  courts,  of  each  following  the  decisions  of 
his  predecessors,  wherever  the  case  under  con- 
sideration had  a  precedent  in  the  records  of  the 
court.  Also,  rules  of  practice  and  procedure  be- 
gan to  accumulate,  until,  at  length  the  limits  of 
equity  jurisdiction  and  practice  became  as  firmly 
established  and  as  clearly  defined  as  were  those 
that  surrounded  the  jurisdiction  and  practice  of 
the  common  law  courts ;  and  the  legal  machinery 


PHARMACAL    JURISPRUDENCE.  55 

set  in  motion  h\  \\w  former  became  even  more 
complex,  cumbersome  and  slow  tlian  that  attend- 
ing the  exercise  of  the  latter. 

In  later  times,  many  statutes  were  enacted  by 
the  Parliament  amendatory  of  the  common  law ; 
and  in  those  cases  thus  provided  for  by  positive 
law,  there  no  longer  existed  the  natural  and 
original  reason  for  invoking  the  extraordinary 
powers  of  a  court  of  equity.  Yet,  such  cases 
continued  to  be  the  subjects  of  equity  jurisdic- 
tion, and  were  still  heard  in  chancery,  because  of 
the  historical  reason  that  they  were  embraced 
within  the  established  jurisdiction  of  that  court. 
Precedent  proved  to  be  stronger  than  reason  in 
this  instance,  giving  life  to  the  rule  after  the 
reason  of  it  had  ceased  to  exist. 

On  the  fifth  day  of  Augaist,  1873,  Great  Britain 
made  a  sweeping  and  radical  change  in  the  con- 
stitution of  her  courts.  On  that  day  an  act  of 
Parliament  was  passed,  entitled  "Supreme  Court 
of  Judicature  Act,"  to  take  effect  on  the  second 
day  of  November,  1874.  This  act  provided  for 
the  consolidation  of  the  Court  of  Chancery,  the 
Court  of  Queen's  Bench,  the  Court  of  Common 
Pleas,  the  Court  of  Exchequer,  the  High  Court 
of  Admiralty,  the  Court  of  Probate,  the  Court 
of  Divorce  and  Matrimonial  Causes  and  the  Lon- 
don Court  of  Bankruptcy  into  one  Supreme 
Court  of  Judicature.  By  this  one  act  of  revo- 
lutionary significance  the  slow  growth  of  a 
thousand  years  was  completely  remodeled  in  its 


56  EQUITY. 

outward  form,  whilo  preserviiii>-  intact  the  ma- 
jestic principles  developed  by  the  learning-  and 
wisdom  of  a  long  line  of  illnstrious  judges. 

The  Supreme  Court  of  Judicature  was  so  con- 
stituted that  it  embraced  a  High  Court  of  Jus- 
tice and  a  Court  of  Appeals;  and  the  act  spe- 
cifically provided  for  the  recognition  of  equitable 
rights  and  titles  by  these  two  branches  of  the 
Court,  and  for  the  substantial  application  of 
equitable  remedies.  It  was  a  change  of  form  and 
not  a  change  of  principles.  The  conclusion  had 
been  reached  that  one  court  might  be  constituted 
so  as  to  administer  justice  in  accordance  with 
either  common  law  or  equity  principles. 

Throughout  the  Ignited  States  the  federal 
courts  deal  with  both  law  and  equity,  as  provided 
in  the  Constitution,  but  a  distinct  form  of  action 
is  maintained  for  each,  and  equitable  relief  will 
not  be  granted  in  a  common  law  action.  In  the 
State  Courts  the  practice  is  not  uniform  on  this 
point.  New  Jersey,  Kentucky,  Delaware,  Ten- 
nessee, ^Mississippi  and  Alabama,  respectively, 
maintain  distinct  courts  of  chancery;  while  all 
distinction  between  actions  at  law'  and  suits  in 
equity  has  been  abolished  in  New  York,  Ohio, 
Indiana,  California,  Wisconsin,  ^Minnesota,  Mis- 
souri, South  Carolina,  Kansas,  and  Nebraska. 
In  the  other  States  the  two  forms  of  action  are 
still  maintained,  but,  as  in  the  federal  system, 
both  are  prosecuted  in  the  same  court. 


PIIARMACAL  JURISPRUDENCE. 


S- 


It  appears  \'v(m\  tli(»  course  of  history  and 
from  present  indications,  thai  the  jurisprudence 
of  tlie  fntnre  Avill  acconi]>lish  tlic  complete  as- 
simihition  of  the  doctrines  of  the  two  great  sys- 
tems of  the  past,  and  that  equity  powers  will  be 
universally  exercised  by  courts  of  law. 

INTERNATIONA!.  LAW. 

Sir  William  Blackstone  defined  the  Law  of 
Nations  or  International  Law  as  "The  law  which 
regnlates  the  condnct  and  mntual  intercourse  of 
independent  states  with  each  other  by  reason 
and  natural  justice." 

This  definition  seems  to  imi)ly  a  kind  of  equity 
system,  with  an  unlimited  range  for  the  exercise 
of  individual  opinion,  in  each  particular  case,  as 
to  what  may  be  within  the  limits  of  "reason  and 
natural  justice."  But  if  International  Law 
were  thus,  in  fact,  without  more  definite  limita- 
tions, two  or  more'independent  nations,  swayed 
by  opposing-  interests,  would  rarely  reach  an 
agreement  on  even  the  most  ordinary  lines  of 
intercourse. 

The  Law  of  Nations,  as  now  recognized  by  the 
civilized  independent  states  of  the  world,  em- 
braces a  bodA^  of  distinct  rules  and  precedents; 
and  abstract  reason  and  natural  justice  are  not 
usually  appealed  to  in  a  controversy  between 
nations,  except  in  the  absence  of  an  established 
rule  or  principle. 


58  INTERNATIONAL    LAW. 

Mr.  Lawrence,  in  his  text  book  on  Interna- 
tional LaAv,  defines  it  as  "the  rules  which  deter- 
mine the  conduct  of  the  general  body  of  civilized 
states  in  their  dealings  with  one  another."  This 
definition  seems  to  be  justified  by  the  practice  of 
modern  nations  in  the  settlement  of  their  con- 
troversies. 

Law  of  nations  must  not  be  confused  with 
comity  of  nations.  One  nation  has  the  right  to 
demand  of  another  a  due  observance  of  an  estab- 
lished rule  of  International  Law,  but  the  exer- 
cise of  comity  is  a  matter  of  courtesy  and  mutual 
convenience,  and  is  wholly  wdthin  the  discretion 
of  each  sovereign  state. 

International  Law  has  for  its  sources  the 
writings  of  great  publicists,  decisions  of  prize 
courts,  international  conferences,  arbitral  tri- 
bunals, treaties  and  other  state  papers,  and  in- 
struments given  by  states  for  the  guidance  of 
their  own  officers  and  tribunals. 

It  must  not  be  understood  that  a  mere  theoret- 
ical rule  advanced  by  a  writer,  however  great  his 
learning  and  reputation,  is  a  law  of  nations. 
Such  a  rule  may  present  a  sound  principle,  but 
it  is  not  a  law'  until  it  has  been  accepted  as  such 
or  acted  upon  by  the  nations  themselves.  For 
instance,  many  of  the  humane  practices  now 
uniformly  observed  by  nations  at  w-ar  with  each 
other,  were  first  advocated  for  international  use 
by  the  great  publicist,  Grotius.  But  when  these 
rules  first  appeared   in   his  writings  they   had 


PHARMACAL   JURISPRUDENCE.  59 

merely  the  weight  of  wise  suggestions  and  sound 
principles ;  now,  liaving  been  accepted  by  at  least 
most  and  probably  all  civilized  nations,  they 
possess  the  authoritative  character  of  law. 

The  question  is  often  raised  as  to  whether 
these  international  rules  which  determine  the 
conduct  of  civilized  nations  in  their  dealings  with 
one  another  are  really  laws.  Those  who  raise 
the  question  claim  that  such  rules  do  not  possess 
the  three  elements  necessary  to  constitute  a  law ; 
that  is,  that  they  do  not  embody  the  command 
from  a  superior  being,  the  obligation  to  obey 
resting  upon  those  who  receive  the  command, 
and  the  sanction  or  penalty  by  which  obedience 
is  enforced. 

It  is  only  by  a  technical  criticism  of  interna- 
tional rules  that  the  objector  to  their  character 
as  laws  can  find  any  support  for  his  objection. 
When  more  broadly  viewed  and  fairly  analyzed 
these  rules  disclose  all'of  the  elements  necessary 
to  constitute  a  law ;  and  the  same  principles  are 
found  to  exist  in  them  as  exist  in  those  rules  of 
action  that  are  prescribed  by  the  supreme  power 
of  a  single  state. 

Whenever  a  rule  of  action  has  been  accepted 
by  the  nations  as  a  proper  rule  by  which  to  de- 
termine their  conduct  in  their  dealings  with  one 
another,  it  is,  in  a  sense,  mandatory  in  its  ap- 
plication to  each  of  them,  and  there  rests  upon 
each  of  them  the  obligation  to  obey  it.  As  for 
the  sanction  or  penalty,  the  nation  that  persists 


60  INTERNATIONAL    LAW. 

Id  the  violation  of  the  rules  of  International 
Law  is  certain  to  bring  upon  itself  the  disap- 
proval of  all  other  nations  and  will  probably 
provoke  the  open  hostility  of  one  or  more.  In 
fact,  the  disadvantages  and  losses  reaped  by 
such  a  course  constitute  a  penalty  of  greater  or 
less  significance,  the  contemplation  of  wdiicli  is 
about  as  effective  in  promoting  among  nations 
an  observance  of  International  LaAv  as  the  fear 
of  punishment  is  in  restraining  the  individual 
citizen  of  a  single  state  from  the  commission  of 
crime. 

Closely  related  to  the  Law  of  Nations  stands 
what  is  generally  termed  Private  International 
Law^  or  Conflict  of  Laws.  These  terms  are  ap- 
plied to  that  system  of  rules  or  principles  whicli 
serve  to  direct  the  courts  of  any  independent 
state  in  the  adjudication  of  those  cases  which 
contain  some  foreign  element,  either  as  to  the 
subject  matter  thereof  or  the  parties  thereto, 
and  Avherein  the  jurisdiction  or  the  laws  of  some 
other  independent  state  conflict  with  its  own. 

In  every  case  at  law  or  in  equity  which  em- 
braces any  foreign  element,  the  court  must  first 
decide  whether  it  has  jurisdiction  of  the  sub- 
ject matter  and  the  parties;  that  is,  whether  it 
has  the  right  to  try  the  case  at  all.  If,  by  ap- 
plying the  rules  of  Private  International  Law 
in  force  within  its  own  territory,  it  finds  that 
it  has  the  right  to  hear  and  adjudicate  the  cause, 
then  it  must  next  decide,  by  the  same  S3^stem  of 


PHARMACAI.   JURISPRUOENCE.  61 

rules,  l»y  wliat  body  of  laws  the  riolits  of  the  par- 
ties shall  be  determined.  If,  for  instance,  the 
controversy  involves  the  construction  of  the 
terms  of  a  contract,  and  it  appears  that  the  par- 
ties to  the  contract  intended  that  its  terms  should 
be  governed  by  the  law  of  Italy,  then  the  trial 
court  would,  o-enerally,  under  the  American  rule, 
be  bound  to  apply  the  laws  of  Italy  to  the  inter- 
pretation of  the  instrument.  Havino;  settled  the 
meaning-  of  the  contract  by  the  laws  of  Italy,  the 
court  would  then  apply  the  laws  in  force  within 
its  own  jurisdiction  to  determine  whatever  re- 
lated to  its  performance  and  operation. 

The  rules  of  Private  International  Law  adopt- 
ed, respectively,  by  the  different  civilized  na- 
tions, while  not  exactly  the  same  in  each  state, 
are  yet  so  nearly  the  same  as  to  bring  the  policy 
of  the  several  nations  very  near  to  uniformity 
in  this  respect.  The  explanation  of  this  is  in  the 
fact  that  the  several  communities  are  moved, 
practically,  by  the  same  reasons  and  necessities 
in  this  matter,  and  naturally  adopt  about  the 
same  rules  as  the  most  effectual  and  convenient 
measures  to  meet  the  demand. 

This  branch  of  jurisprudence  differs  in  char- 
acter from  public  International  Law,  in  being 
framed,  published,  and  enforced  by  each  state 
as  a  part  of  its  own  p'eculiar  system  of  laws;  and 
is  international  only  in  the  sense  of  provi<ling 
for  the  extra-territorial  application  of  law. 


62  INTERNATIONAL    LAW. 

Private  International  Law  is  of  eomparatively 
modern  origin  and  owes  its  existence  to  princi- 
ples of  justice,  convenience,  and  comity.  There 
is  a  large  and  important  class  of  cases  which  it 
vv^ould  be  impossible  for  our  courts  to  deal  with, 
and  do  justice  to  the  parties,  without  applying 
this  system  of  rules.  Foremost  in  this  class  of 
litigation  are  questions  arising  out  of  marriage, 
divorce,  doinicil,  administration  of  the  estates  of 
deceased  persons,  bankruptcy,  torts  and  con- 
tracts. 

For  an  acquaintance  with  the  specific  rules 
applied  by  our  courts  in  the  adjudication  of 
cases  involving  foreign  elements,  the  reader  is 
referred  to  either  "Wharton's  Conflict  of  Laws" 
or  "Dicey  on  the  Conflict  of  Laws."  The  former  is 
an  American  work ;  the  latter  is  written  from  an 
English  view  of  the  subject,  but  is  supplemented 
bv  able  and  exhaustive  American  notes. 


PHARMACAL  lURISPRUDENCE. 


CHAPTER  I. 

Definitions  and  Scope  of  the  Subject. 

In  entering  upon  the  study  of  any  subject,  es- 
pecially if  it  pertains  to  a  field  of  learning  that 
is  comparatiyely  new  to  him  who  is  about  to  ex- 
plore it,  great  care  should  be  directed  to  acquir- 
ing a  reasonably  exact  knowledge  of  the  mean- 
ing of  its  more  important  and  peculiar  terms. 
By  a  due  regard  for  this  preliminary  but  yital 
feature  of  his  labor,  the  learner  will  experience 
less  difficulty  than  would  otherwise  be  his  in 
mastering  the  principles  of  the  science  to  which 
he  is  deyoting  his  time  and  energy. 

Pursuant  to  the  thought  just  stated,  this  chap- 
ter is  giyen  to  the  discussion  and  definition  of  a 
few  primary  terms,  a  knowledge  of  Ayhicli  is 
deemed  to  be  almost  indispensable  to  a  ■  fair 
understanding  of  the  work  in  hand. 

Blackstone  defines  law  as  "a  rule  of  action 
dictated  by  a  superior  being.'-^  This  defini- 
tion is  very  broad  and  general  in  its  terms  and 
includes  about  eyery  possible  kind  of  rule  within 
the  range  of  human  knowledge.  It  does  not, 
however,    include    what   are   commonly    termed 

J  Blackstone  Commentaries,  page  38. 


64  DEFINITIONS    AND    SCOPE. 

"the  laws  of  nature,"  and  ought  not  to  do  so,  for 
the  simple  reason  that  the  latter  are  truths  or 
principles  rather  than  laws,  strictly  speaking. 
It  is  true,  however,  that  authority  somewhat 
arbitrarily  supports  this  illogical  application  of 
the  word  law  to  an  accepted  truth  of  science,  and 
compels  us  to  recognize  the  fact  that  it  has  this 
distinct  and  peculiar  use  as  synonymous  with 
principle. 

The  definition  of  law  given  above  should  be 
understood  as  limiting  the  word  in  its  applica- 
tion to  things  pertaining  to,  or  in  the  nature  of, 
the  science  of  government;  and  as  a  further  lim- 
itation, when  referring  to  the  laws  of  any  par- 
ticular state  or  nation  and  excluding  all  rules  not 
embraced  in  the  political  sense  of  the  word,  the 
term  "municipal"  is  prefixed,  and  municipal  law 
is  defined  as  "a  rule  of  civil  conduct  prescribed 
by  the  supreme  power  of  a  state,  commanding 
what  is  right  and  prohibiting  what  is  wrong."^ 

It  seems  necessary  to  the  existence  of  a  law 
that  there  shall  be  some  superior  being  or  power 
capable  of  dictating  or  prescribing  a  rule  of 
action.  It  is,  however,  unimportant,  whether 
the  superior  power  is  lodged  in  an  individual,  a 
group  of  individuals,  or,  as  in  the  case  of  inter- 
national rules,  a  number  of  such  groups.  It  is 
apparent,  also,  that  the  nature  of  a  law  presup- 
])oses  that  there  shall  be  an  inferior  being,  or 
inferior  beings,  to  whom  the  rule  of  action  may 

1  Blackstone  Commentaries,  page  44, 


PHARMACAL    JURISPRUDENCE.  05 

be  directed,  aud  ii^xm  whom  there  shall  rest  the 
obligation  or  ueeessity  of  obedieuee.  The  third 
element  that  seems  neoesvsary  to  the  existence  of 
a  law  is  that  there  shall  be  behind  it  tlie  ]K)wer 
to  enforce  obedience  to  its  provisions.  Without 
this  last  featnre,  a  rule  of  action  in  a  political 
sense  Avould  be  entirely  wdthout  significance  and 
human  government  would  be  impossible. 

Resulting  from  the  conditions  outlined  above 
as  being  necessary  to  the  existence  of  a  law,  we 
find  that  every  such  rule  of  action  nuiy  be  said 
to  embrace  at  least  three  distinct  parts,  all  of 
which  are  either  expressed  or  implied  in  each 
rule;  and  to  some  laws,  especially  such  as  enjoin 
public  duties,  a  fourth  element  pertains.  In 
that  which  is  called  the  "declaratory"  part,  the 
legislator  defines  the  subject  matter  of  the  law, 
stating  what  is  to  be  done  or  not  to  l)e  <lone;  the 
"directory"  part  indicates  the  legislative  will  as 
to  the  conduct  of  the  citizen  relative  to  the  sub- 
ject matter  of  the  law;  in  the  "remedial"  i)art,  is 
found  the  means  of  enforcing  a  right,  of  obtain- 
ing a  remedy  where  a  wrong  has  been  done;  and, 
finally,  the  "vindicatory"  part  or  sanction,  which 
pertains  more  especially  to  law^s  relating  to  pub- 
lic duties,  defines  the  penalty  to  be  incurred 
through  disobedience. 

Common  laAv,  as  defined  by  Sir  William 
Blackstone,  is  "Tlie  law^  common  to  all  (he 
realm.  A  collection  of  maxims  and  customs,  of 
higher  antiquity   than   memory   or   history'   can 


66  DEFIXITIOXS    AND    SCOPE. 

reacli."^  In  a  United  States  case,  Justice 
Sawyer  says  it  is  "reason  dealing  by  tlie  light  of 
human  experience;"-  and  in  a  Pennsylvania 
case  Chief  Justice  Lowrie  says:  "Common  law 
grows  out  of  the  general  customs  of  the  country. 
*  *  *  The  common  law  of  one  country,  or 
century,  is  not  necessarily  the  comuutn  law  of 
another,  because  customs  change.  It  is  a  sort  of 
law  created  by  the  people  themselves.  When  the 
judges  declare  it,  they  merely  discover  and  de- 
clare what  they  find  existing  in  the  life  of  the 
people  as  a  rule  of  their  relations.  *  *  *  it 
is  this  law  that  people  emigrating  take  with  them 
by  tacit  adoption,  as  far  as  is  consistent  with 
their  new  circumstances.''^ 

As  explained  in  the  Introductory  Thesis  con- 
tained in  this  book,  the  common  law  of  the  sev- 
eral states  of  this  Union  is  based  upon  the  Eng- 
lish common  law,  many  principles  of  which  were 
adopted  by  the  colonies  immediately  upon  their 
settlement  here,  while  others  were  gradually  so 
modified  as  to  adapt  them  to  the  peculiar  condi- 
tions of  colonial  life.  AVith  such  a  basis  the 
States  have  developed  each  its  own  system,  but 
all  agree  in  the  main,  except  where  in  a  few  in- 
stances some  other  system  of  couimon  law  formed 
the  basis  of  State  jurisprudence.  The  most 
marked  exception  is  Louisiana,  which  was  col- 

1  Blackstone  Commentaries,  page  67. 

2  Dickerson  v.  Colgrove,  100  U.  S.  584,  2.')  L.  Ed.  018,  0  U. 
S.  Notes  872. 

3  Effinger  v.  Lewis,  32  Pa.  St.  36*i. 


PHARMACAI,    lURlSPRUnKNCF..  (1/ 

onizod  by  tlu*  Fi'oiicli,  and  couseqnoiitly  took  her 
first  legal  principles  from  the  system  of  that 
people. 

In  the  absence  of  statutory  rnles,  the  courts  of 
each  State  are  onided  by  the  principles  of  com- 
mon law  in  force  within  its  territory. 

The  term  ''general  law,'-  sometimes  loosely 
used  for  common  law,  is  applicable  to  such  rules 
as  relate  to  a  whole  class  or  order  of  persons,  as 
distinguished  from  "special  law,"  a  term  applied 
to  rules  framed  to  include  less  than  an  entire 
class,  or  restricted  in  their  operations  to  a  cer- 
tain locality.  At  common  law  the  courts  would 
not  take  judicial  notice  of  a  special  law,  but  it 
was  necessary  for  the  party  relying  upon  it  to 
plead  it  and  prove  its  existence  as  he  would  prove 
any  other  fact. 

"The  Civil  Law"  was  the  muuici])al  law  of  the 
Roman  Empire.  The  adjective  "civil"  is  derived 
from  the  Latin  Avord  civis,  meaning  citizen,  so 
the  term  "civil  law"  means  simply  the  citizen 
law  or  law  of  the  citizen  of  TJonie.  Its  princi- 
ples form  the  foundation  of  the  common  law  of 
most  modern  nations  of  continental  Europe,  con- 
tributing in  an  important  sense  to  that  of  Oreat 
Britain,  and  through  that  channel  to  the  juris- 
prudence of  the  States  of  this  T'nion  ;  they  hav- 
ing their  common  law  based  upon  that  of  the 
English  people. 

The  term  "civil  law"  in  oiii'  own  system  of 
jurisprudence  refers  to  "The  laws  which  a  com- 


b8  DEFINITIONS    AND    SCOPE. 

iiiiiiiity  or  state  has  established  for  the  regula- 
tion of  its  own  aft'airs,  as  distinguished  from  the 
hnv  of  nations;  also,  that  porticm  of  such  laws 
which  regulates  dealings  between  subjects  or  cit- 
izens, in  distinction  from  criminal  laAV,  military 
laAv,  maritime  law,  and  the  general  law-mer- 
chant.'"^ 

Criminal  law  is  the  law  relating  to  crimes  or 
public  wrongs.  Public  wrongs  or  crimes,  in 
their  relation  to  criminal  law,  do  not  necessarily 
involve  the  idea  of  moral  tur])itude  or  possess  an 
element  of  evil  in  their  nature.  Any  sovereign 
state,  in  the  pursuit  of  a  given  i)olicy,  may  arbi- 
trarily enact  laws  against  the  doing  of  certain 
acts,  innocent  in  themselves,  and  thereby  con- 
vert those  acts  into  offenses  against  the  state,  or 
crimes.  In  its  legal  sense  the  word  crime  has 
been  briefly  defined  as  "An  act  that  subjects  the 
doer  to  legal  punishment.''-  AVhile  in  a 
Wisconsin  case  its  meaning  has  been  iiku'c  fully 
expressed  as  "A  wrong  of  which  the  law  takes 
cognizance  as  injurious  to  tlie  ])ublic,  and  pun- 
ishes in  what  is  called  a  criminal  proceeding- 
prosecuted  by  the  State  in  its  own  name  or  in  the 
name  of  the  people  or  the  sovereign.''^ 

A  statute  law,  otherwise  called  written  or  pos- 
itive law,  is  a  legislative  enactment.  The  two 
branches  of  this  de])artment  of  law,  known  re 

1  Anderson's  Dictionary  of  Law. 

■•^  Standard  Dictionary. 

3  Re  Bergen,  31  Wis.  386  (1872). 


PHARMACAL   JURISPRUDENCE.  60 

spectively  as  Federal  stjiluies  and  Slate  staliiles, 
Avitli  their  relations  to  each  other  and  to  the  eom- 
mou  law,  are  brietly  treated  in  the  Introdnetory 
Thesis. 

The  term  "organic  law"  is  a])[)lied  to  the  prin- 
ciples upon  which  a  state  is  organized  and  which 
may  be  found  in  its  constitution.  It  is  defined  as 
"The  fundamental  law  of  a  community  or  state, 
whether  written  or  unwritten."^'  It  mnst 
be  borne  iu  mind  that  the  terms  "written"  and 
"unw'ritten,"  as  used  in  their  relation  to  law,  are 
not  to  be  understood  strictly  in  their  ordinary 
sense.  "AVritten"  is  applied  only  to  such  laws 
as  have  been  enacted  by  the  legislative  power  of 
a  state  and  formally  written  out  as  statutes. 
While  "unwritten"  is  applied  to  the  common  law 
of  the  land,  embracing  a  vast  body  of  rules  and 
principles  to  be  found  in  the  decisions  of  the 
highest  courts  and  in  the  text  books  ])ublished 
by  numerous  able  writers. 

These  principles,  thcRigh  they  have  been  many 
times  reduced  to  writing  in  their  application  by 
the  judges  to  the  settlement  or  adjudication  of 
countless  cases,  yet  preserve  their  elastic  char- 
acter and  have  never  been  reduced  to  a  positive, 
inelastic  rule  of  universal  application  in  the  na- 
ture of  a  statute. 

In  the  definition  of  organic  law  given  above, 
written  fundamental  law  refers  to  a  constitution 
which  has  been  drawn  or  writt(Mi  out  as  a  set  of 

1  Anderson's  Dictionary  of  Law. 


70  DEFINITIONS    AND    SCOPE. 

specific  and  positive  rules,  the  whole  makino-  one 
complete  and  clearly  defined  document;  while 
unwritten  fundamental  law  refers  to  a  constitu- 
tion which  has  never  been  thus  reduced  to  a  set 
of  sjiecific  positive  rules,  but  exists  in  the  form 
of  established  principles,  more  in  the  nature  of 
common  law.  The  Constitution  of  the  United 
States  furnishes  a  good  example  of  the  former, 
while  the  Constitution  of  Great  Britain  is  typical 
of  the  latter. 

"Foreign  law,"  as  implied  in  the  language, 
means  simply  the  law  of  another  sovereignty  or 
nation.^  Our  courts  take  judicial  notice  of 
the  laws  belonging  to  this  country;  that  is,  when 
the  attention  of  the  court  is  directed  to  such  a 
law,  authentically  published,  it  is  deemed  to  be 
within  the  knowledge  of  the  court  and  no  proof 
of  its  character  as  law  is  recpiired.  It  is  other- 
wise, however,  with  foreign  law,  which  must  be 
proven  like  any  other  fact. 

International  law  or  law  of  nations,  called 
also  public  law,  is  most  simply  defined  as  "The 
rules  which  determine  the  conduct  of  the  general 
body  of  civilized  nations  in  their  dealings  with 
one  another. "- 

Private  international  law,  known  also  as  con- 
flict of  laws,  is  the  name  applied  to  those  rules 
which  a  state  adopts  for  the  giiidance  of  its  courts 
in  the  application  of  the  laws  of  another  inde- 

1  Anderson's  Dictionary  of  Law. 

2  The  Principles  of  International  Law.     Lawrence. 


PHARMACAI.    JURISPRUDEXCE.  71 

pendent  state  to  such  cases,  coniinj:;  within  tlieir 
jurisdiction,  as  involve  some  foreijj^n  element 
either  as  to  parties  or  as  to  subject  matter. 

International  law.  both  public  and  private,  is 
more  fully  exi)lain(Ml  iu  the  Introductory  Thesis, 
and  it  will  be  suiticieut  to  say  here  that  (uir 
courts  take  judicial  notice  of  the  rules  emltraccd 
in  l>oth  branches. 

Jurisprudence,  in  its  more  limited  and  scicMi- 
tirtc  sense,  is  the  science  of  interpretiuii  and  aj)- 
plying  the  laws  in  the  adjudication  of  eases.  The 
word  is  used  also  more  broadly  and  loosely  to  ex- 
press the  entire  system  of  laws  in  force  in  any 
stated  country,  as  distinguished  from  those  of 
other  countries,  as,  for  instance,  the  Roman  sys- 
tem of  jurisprudence;  and,  again,  to  distinguish 
the  application  of  the  principles  of  the  law  to 
the  conditions  of  any  particular  vocation,  to- 
gether with  the  body  of  specific  or  positive  rules 
peculiar  to  such  vocation,  as  medical  jurispru- 
dence, Pharuuical  Jurisprudence,  etc. 

It  will  be  well  at  this  point  in  our  work  to  tix 
the  attention  upon  the  fact  that,  aside  from  the 
few  special  statutory  rules  which  may  be  enacted 
by  the  legislative  power  to  meet  the  peculiar  re- 
quirements of  any  business  or  profession,  the 
great  body  of  rules  controlling  the  same  must  be 
drawn  from  the  general  principles  of  the  law. 
The  work  of  discovering  the  right  principle  and 
wisely  applying  it  to  the  case  at  issue  is  the  duty 
of  the  judge,  and  is  a  practical  application  of  the 


72  DEFINITIONS    AND    SCOPE. 

science  of  jiirispriulence.  For  instance,  if  a 
physician  undertakes  the  treatment  of  a  sick 
man,  there  is  an  implied  contract  on  the  part  of 
the  physician  that  he  will  nse  in  the  treatment 
of  his  patient,  at  least  ordinary  skill  and  care. 
If  injury  to  the  patient  results  from  the  treat- 
ment and  a  suit  for  damages  is  brought  against 
the  physician,  in  which  such  acts  are  charged  as 
amount  to  a  violation  of  the  implied  contract, 
the  judge,  if  he  finds  no  precedent,  similar  case 
to  supply  a  rule  to  guide  him  in  his  decision,  may 
be  obliged  to  have  recourse  to  the  general  ])ody  of 
contract  law  to  find  a  principle  that  may  be  ap- 
plied to  the  decision  of  the  issue  before  him.  Yet, 
in  making  the  application  of  any  sucli  principle, 
due  regard  must  be  had  for  all  the  unusual  con- 
ditions that  may  appear  in  the  case  as  the  result 
of  the  j)eculiar  character  of  medical  science  and 
practice.  In  order  that  the  judge  may  act  ad- 
visedly in  so  delicate  a  matter,  and  wisely  ap])ly 
the  law,  it  may  be  necessary  for  him  to  supple- 
ment his  own  knowledge  with  the  testimony  of 
expert  medical  witnesses. 

The  foregoing  brief  explanation  of  the  science 
of  jurisprudence  may  assist  the  reader  to  under- 
stand the  real  nature  of  Pharmacal  Jurispru- 
dence, and  to  discover  whatever  there  may  be  of 
fitness  in  the  definition  which  has  been  framed 
for  the  subject  of  this  book. 

Pharmacal  Jurisprudence  treats  of  the  appli- 
cation of  the  principles  of  the  law  to  conditions 


rilAKMAC'Al 


;pKri)i:\cE.  73 


(Icvi'loped  l>y  I  lie  jn-aclicc  of  ])liann.Mcy,  ;nul  ciii- 
hraces  sucli  rules  of  positive  law  ns  have  been 
iiinclo  to  meet  the  reiniii-eineiils  of  those  coiuli- 
ti(»iis. 

The  iletiiiitioii  here  ^iven  assiiiues,  fiiiidanieiU- 
ally,  that  this  branch  of  the  Unv  is  not  to  be  re- 
uar.led  as  a  system  of  ww  prineiples  bnt  rather, 
tlie  a])])li(ation  of  well-known  and  established 
]»rin(ii)les  to  the  (•ir<  iinistanees  attendinc:  a  oom- 
naratively  new  tield  of  litigation.  ()nr  laws, 
l)erforee  of  necessity,  *>Tonp  themselves  along-  the 
lines  of  greatest  activity,  and  Avhere  nothinj>-  is 
done  no  reunlatinti-  or  controlling;-  rnles  are 
needed ;  bnt  to  whatever  line  of  operations  human 
interest  and  energy  are  directed,  there  the  law 
must  promptly  extend  its  controlling  arms  for 
the  regulating  and  enforcing  of  human  rights. 
Thus  arises  a  new  demand  for  the  judicial  func- 
tion in  ap])lying  old  legal  princii)les  to  new  con- 
ditions, and  from  this,  as  a  natural  seciuence, 
tliere  results  the  gradiml  development  of  a  new 
branch  of  law  or  jurisprudence.  Of  course  it  is 
apparent  that  whenever  a  profession  or  business 
arises  to  the  dignity  of  furnishing  a  name  for  a 
new  branch  of  the  world's  jurisprudence,  it  has 
thus  given  the  strongest  evidence  possible  of  its 
own  growth  and  significance. 

Although  the  first  part  of  our  detiniti<ui  of 
Pharmacal  Jiiris]>i'udence  includes  the  ])rincipal 
features  of  the  subject,  yet  its  entire  scoi)e  can- 
not be  indicated  without  the  addition  of  the  last 


74  DEFINITIONS    AND    SCOPE. 

part.  Some  positive  laws  have  been  enacted 
both  in  this  country  and  Great  Britain,  having 
for  their  object  the  regulation  of  the  practice  of 
pharmacy,  and  a  definition  of  this  branch  of  ju- 
risprudence must  be  so  framed  as  to  include 
tliese  positive  rules  or  legislative  enactments. 

From  this  brief  study  of  the  definition  of  our 
subject,  some  inferences  may  be  drawn  concern- 
ing the  legitimate  range  or  limits  of  the  ground 
to  be  covered  by  this  treatise.  It  will  be  appar- 
ent that  if  the  work  were  restricted  to  the  dis- 
cussion of  such  statutory  rules  as  have  been  en- 
acted on  the  subject,  together  with  the  decisions 
applying  and  interpreting  these  rules,  it  would 
require  but  little  time  and  labor  to  complete  the 
undertaking.  But  when  it  is  remembered  that 
Pharmacal  Jurisprudence  consists  chiefly  in  the 
application  of  principles,  selected  from  different 
branches  of  the  law  in  general,  to  specific  eases 
arising  out  of  the  practice  of  pharmacy,  and  that 
the  subject  has  its  commercial  as  well  as  its  pro- 
fessional aspect,  it  will  be  seen  that  our  field  of 
operation  promises  to  develop  outlines  of  consid- 
erable magnitude.  After  a  rapid  glance  at  the 
origin  and  history  of  this  part  of  the  law,  both 
the  past  and  the  present  legal  status  of  the  phar- 
macist, the  legal  limits  of  the  profession  of  phar- 
macy and  its  relations  to  its  kindred  profession 
of  medicine,  and  the  legal  relations  of  the  phar- 
macist to  statutory  boards  of  pharmacy,  it  is 
proposed  to  next  examine  some  of  the  principles 


PHAKMAtAL    J  IRISPR  T  DKXCK.  ,b 

of  the  law  of  coiitracts  within  the  limits  of  their 
application  to  oni*  snbject.  The  scope  of  onr 
work  will  require  an  investiuation  of  the  law 
ooverning-  phaniiacal  malpractice  and  the  gen- 
eral liability  of  the  i)harmacist  in  that  rej^ai'd; 
and  in  this  connection  the  liability  of  the  manu- 
facturing pharmacist  will  be  the  subject  of  con- 
sideration. The  law  of  agency  must  claim  the 
attention  of  the  reader,  with  a  yiew  to  disclos- 
ing the  legal  relations  existing  betAyeen  the  man- 
ufacturer and  the  retail  dealer  and  pharmacist  on 
one  side  and  their  seyeral  employes  on  the  other 
side,  with  the  resulting  liability  of  the  former 
for  acts  done  by  the  latter.  It  will  be  necessai^j' 
to  examine  a  number  of  other  principles  and 
statutes,  selected  from  the  law  in  general  on  ac- 
count of  their  indirect  or  incidental  bearing  upon 
matters  that  fall  within  the  range  of  our  subject. 
In  the  discussion  of  the  yarious  legal  princi- 
ples suggested  aboye,  it  is  proposed  to  introduce 
numerous  decisions  for  the  further  elucidation  of 
these  principles  and  to  show  their  practical  ap- 
plication to  pharmacal  conditions.  In  some  of 
the  leading  cases,  the  opinions  handed  down  by 
the  courts  in  rendering  their  decisions  will  be 
given  in  full,  in  order  that  the  lines  of  reasoning 
followed  by  the  judges  may  giye  more  viyid  con- 
ceptions of  the  several  principles  and  their  a])- 
plicatiou  to  the  facts.  In  other  cases  the  de- 
cisions will  be  presented  more  briefly,  embodying 
only  the  conclusions  reached  by  the  courts.     A 


76  DEFINITIONS    AND    SCOPE. 

brief  summing  up  or  dii>est  of  the  rules  deduced 
Avill  conclude  each  topic  discussed. 

The  scope  of  the  treatise  requires  the  consid- 
eration of  the  statutory  provisions  regulating-  the 
practice  of  pharmacy  in  tliis  country,  emhracing 
a  study  of  the  conditions  which  led  to  the  action 
of  the  several  legislatures  in  this  regard;  with  a 
discussion  of  their  constitutionality,  their  rela- 
tions to  the  general  law,  their  territorial  limits, 
and  their  interpretation  by  the  courts  in  such 
cases  as  have  arisen  under  them.  It  will  be  nec- 
essary- to  consider,  also,  the  main  features  of  an 
ordinary  action  at  law,  and  the  relations  which 
a  phannacist  may  sustain  to  such  an  action 
either  as  a  party  or  as  an  expert  witness. 

A  number  of  practical  questions,  incidentally 
touching  the  profession  of  pharmacy,  demand 
treatment  in  connection  with  a  work  of  this  kind ; 
among  which  are  the  legal  status  of  the  physi- 
cian's prescription,  as  to  the  several  interests 
of  physician,  patient  and  pharmacist ;  insurance 
law  relating  to  a  stock  of  drugs,  or  to  a  mixed 
stock;  and  the  origin,  nature  and  use  of  trade 
marks,  witli  the  penalty  for  the  violation  thereof. 
Any  other  legal  rule  or  principle,  having  a  prac- 
tical bearing  upon  either  the  professional  or  the 
commercial  aspect  of  pharmacy  practice,  may  be 
deemed  properly  within  the  limits  of  Pharmacal 
Jurisprudence. 


PIIARMACAL    JURISPRUDENCE. 


CUIAPTEK  II. 

Hlstouical  View  of  the  Sur-teut. 

Ill  the  Introductory  Tliesis,  tlie  history  and 
outlines  of  our  present  system  of  Iuav  in  oeneral 
has  been  briefly  indicated,  and  it  is  noAv  proposed 
to  touch,  with  equal  brevity,  upon  the  beginnings 
and  growth  of  Pharmacal  Jurisprudence  consid- 
ered as  a  special  department  or  branch  of  the 
law. 

Our  researches  along  the  line  at  legal  history 
lead  us  back  to  a  ]KH'iod  of  time  but  slightly  re- 
moved from  that  in  which,  in  the  opinion  of 
"good  society,"  a  knowledge  of  ''simples"  was 
quite  sufficient  to  damn  its  possessor  as  a  wizard 
or  witch ;  and  when  an  unwary  person,  chancing 
to  fall  into  the  neighborhood  of  something  which 
even  distantly  resembled  a  chemical  laboratory, 
crossed  himself  vigorously  as  a  kind  of  disinfec- 
tion from  an  unwholesome,  brimstone  atmos- 
phere. 

Strictly  speaking,  pharmacy,  as  a  distinct  and 
scientific  profession,  had  its  birth  in  the  early 
part  of  the  nineteenth  century;  but  its  princi- 
ples have  been  known,  studied,  and  used  in  con- 
nection with  medicine  for  many  centuries.  We 
find  that  the  principles  of  pharmacy  were  prac- 
ticed successively  by  grocers,  chemists  and  drug- 
gists, and  apothecaries  long  before  the  term 
"pharmacy"     was    generally    applied    to    that 


78  HISTORICAL    VIEW. 

branch  of  science;  but  for  convenience  through- 
out this  chapter,  that  modern  and  scientific  term 
will  be  used  in  speaking  generally  of  the  legal 
history  of  the  principles  noAv  embraced  within 
its  meaning. 

Except  that  learning,  itself,  possesses  an  in- 
nate and  immortal  dignity,  pharmacy  does  not 
occupy  a  very  dignified  position  in  history.  It 
is  old  in  its  researches  and  learning,  but  compar- 
atively new  so  far  as  concerns  its  recognition  by 
the  world  as  one  of  the  most  useful  of  all  sciences 
and  professions.  Medical  jurisprudence  and 
forensic  medicine,  as  branches  of  the  law,  pos- 
sess a  history  centuries  old;  and  even  dental  ju- 
risprudence, young  as  is  the  profession  of  den- 
tistry', found  an  able  exponent  in  the  late  Mr. 
IJehfuss,  whose  excellent  book  is  now  an  author- 
ity on  that  branch  of  the  law;  but  Pharmacal 
Jurisprudence,  except  as  touched  upon  by  writ- 
ers on  medical  law,  has  not  heretofore,  to  any 
extent,  engaged  the  attention  of  law  writers,  nor 
has  it  received  that  degree  of  consideration  from 
either  lawyers  or  pharmacists  to  which  its  im- 
portance entitles  it.  The  Department  of  Phar- 
macy of  the  University  of  California  was  prob- 
ably the  first  college  of  pharmacy  in  America  to 
add  this  important  feature  to  its  course  of  study, 
and  the  author  is  not  aware  that  there  exists,  at 
the  time  of  this  writing,  any  text  book  or  com- 
pilation of  decisions  on  this  branch  of  the  law. 
This  poverty  of  judicial  record  in  the  past  is 


PHARMACAL   JURISPRUDENCE.  79 

owing",  it  i,s  thongivt,  t(i  tlio  rather  Iniiuble  atti- 
tude of  the  profession  of  pliarmaey  (Inring  the 
centuries  precedinji'  the  nineteenth;  and  the  fact 
that  the  practice  of  this  profession,  wlierein  exist 
so  many  opportunities  for  serious  and  even  fatal 
mistakes,  has  not  developed  a  greater  amount  of 
litigation  during  the  present  century,  may  be 
attributed,  largely,  to  the  studious  and  painstak- 
ing character  of  the  main  body  of  its  members. 

Undoubtedly  most  civilized  countries  have,  at 
various  times,  enacted  laws  of  the  nature  of 
police  regulations,  relating  to  the  sale  or  dispens- 
ing of  poisons  and  other  drugs.  Shakespeare 
affords  us  a  vivid  picture,  suggestive  of  the  gen- 
eral status  of  pharmacy  and  of  the  law  environ- 
ing it  in  Europe,  prior  to  and  during  that  great 
writer's  time.  Like  most  of  his  writings,  this 
graphic  account  seems  to  speak  the  sharj)  trutli 
of  an  age  in  which  the  dominant  classes  of  society 
were  yet  dull  to  airieaming,  and  saw  in  "Will 
Shakespeare"  himself,  but  a  common  play-actor. 
In  the  passage  referred  to,  Romeo,  hearing,  as  lie 
believes,  of  the  passing  of  the  soul  of  Juliet,  de- 
sires a  "dram  of  poison"  as  a  means  by  which  to 
cross  the  dark  barrier  that  separates  him  from 
his  lost  love : 

"I  do  remember  an  apothecary, — 
And  hereabout  he  dwells, — wliicli  late  I  noted 
In  tattered  weeds,  with  overwhelming  brows, 
Culling  of  simples;  meager  were  his  looks, 


so  HISTORICAL    VIEW. 

Sharp  misery  hath  worn  hiin  to  the  bones : 

And  in  his  needy  shop  a  tortoise  hung, 

An  alligator  stnifed,  and  other  skins 

Of  ill  shaped  fishes;  and  above  his  shelves 

A  beggarly  account  of  empty  boxes, 

Green  earthen  pots,  bladders  and  musty  seeds. 

Remnants  of  packthread  and  old  cakes  of  roses, 

AVere  thinly  scattered  to  make  up  a  show. 

Noting  this  penury,  to  myself  I  said 

'And  if  a  man  did  need  a  poison  now. 

Whose  sale  is  present  death  in  Alantua, 

Here  lives  a  caitiff  wretch  would  sell  it  him,'  " 

In  response  to  Romeo's  demand  for  poison,  ac- 
companied by  a  liberal  offer  of  gold,  mindful  of 
the  danger  threatened  by  the  law,  the  apothecary 
replies : 

"Such  mortal  drugs  I  have;  but  Mantua's  law 
Is  death  to  any  he  that  utters  them." 

The  apothecary  yields  at  last  to  the  demands 
of  the  insistent,  would-be  suicide  and  says : 

"My  poverty  but  not  my  will  consents."      Then 

Romeo : 

"I  pay  thy  poverty,  and  not  thy  will." 

The  lean  and  pitiful  aspect  of  the  person  de- 
scribed, doubtless  as  a  type  of  his  profession,  sug- 
gests the  very  slight  esteem  in  which  that  pro- 
fession was  held;  while  his  fearful  reference  to 
the  terrors  of  the  law  sheds  light  upon  the  legal 
policy  of  that  age  and  country  in  regard  to  the 


PHARMACAL   JURISPRUDENCE.  Si 

sale  of  poisoiKtiis  <lnii;s.  The  lesson  co.ivcycd 
by  these  lines  from  Shakespeare  is  more  of  in- 
ference than  of  fact,  but  it  warrants  the  convic- 
tion that  the  law,  even  then,  took  notice  of  the 
dealer  in  drugs,  though  to  him  its  only  aspect  was 
threatening  and  it  might  have  availed  him  noth- 
ing in  the  way  of  protection. 

The  typical  modern  drug  store  or  pharmacy, 
when  compared  with  the  shop  described  by 
Shakespeare,  speaks  eloquently  of  the  changed 
conditions.  Understood  and  appreciated  by  the 
public,  protected  and  fostered  by  the  law,  the 
calling  of  the  pharmacist  is  rising  to  its  legiti- 
mate place  of  dignity  among  the  learned  pro- 
fessions of  the  world;  an<l  the  men  Avho  r(^])r('sent 
it  are  now  the  peers  of  any  in  respectability  and 
social  standing,  as  they  have  always  been  in  in- 
telligence and  learning. 

We  must,  of  course,  look  to  the  parliamentary 
acts  and  judicial  records  of  England  for  the  more 
definite  beginnings  of  this  department  of  juris- 
prudence. Ordronaux  and  other  American 
writers,  who  have  referred  to  this  branch  of  the 
law,  have  classed  the  apothecary  of  England,  as 
to  his  ]n'ofessional  and  legal  character,  as  the 
predecessor  of  our  modern  pharmacist.  This 
classification  is  true  in  a  limited  sense  only,  as 
the  English  apothecary,  at  least  as  far  back  as 
the  year  1543,  has  always  been  a  lawful  i>rac- 
titioner  of  medicine  within  certain  limits.  It  is 
probable  that  during  the  earlier  part  of  this  time, 


82  HISTORICAL    MEW. 

the  apothecary  was  the  exclusive  representative 
of  the  drug  business,  but  it  is  certain  that  later 
there  grew  up  a  class  of  druggists,  or  chemists 
and  druggists,  who  were  entirely  distinct,  in  their 
character  and  legal  responsibilities,  from  the 
apothecaries,  and  the  distinction  still  exists 
since  the  former  class  has  developed  into  the 
pharmacist  of  more  modern  times.  However, 
since  the  apothecary,  in  his  double  character  of 
doctor  and  pharmacist,  continued  to  compound 
medicines  for  the  physicians,  even  while  the 
chemist  and  druggist  was  operating  in  the  same 
line,  and  since  the  law  took  notice  of  him  with 
regard  to  his  duties  as  a  dispenser  of  dnigs,  w(! 
shi'll  glance  at  some  of  the  English  statutes  en- 
acted to  that  end. 

It  seeiDS  that  the  apothecary  took  his  name 
from  ancient  sources,  suggesting  a  history  too 
remote  for  our  present  uses,  it  being  derived  from 
the  (Jreek  apothcl-r,  compounded  of  apo,  away, 
and  tif]ii)i)i,  to  put,  through  the  Latin  apothc- 
(■(iriiis,  a  storekeeper,  from  apotlicca,  a  store.  As 
the  name  implies,  we  find  the  apothecary  in  Eng- 
land, in  earlier  times,  a  storekeeper,  classed  with 
the  grocers  of  the  country  and  possessing  the 
same  legal  status;  while  in  more  recent  years  he 
is  found  presiding  over  what  is  ]iopularly  called 
a  "doctor's  shop."  Rut  even  in  the  earlier  times 
referred  to,  the  apothecaries  mus(  liave  been  an 
active  and  quasi  scientitic  Ixxly  of  men,  known  to 
possess  a  sphere  of  usefuliu^ss  somewhat  broader 


PHARMACAL    JURISPRUDENCE.  S3 

Thai  siicli  was 
the  case  is  strongly  implied  l».v  llic  Act  of  ]*ar- 
liament,  34  and  ^o,  Ileiirv  VIII  cIi.  S,  passed  in 
1543. 

rarliament  desiniuMl,  l»y  llie  a<'l  referred  to 
above,  to  remedy  eertain  evils  which  had  grown 
np  in  connection  with  the  practice  of  London  sur- 
geons, concerning  whose  ignorance  and  disrepu- 
table conduct  the  preamble  speaks  in  terms  of 
great  severity.  The  body  of  the  statute  is  ex- 
pressed in  the  following  quaint  language:  "Be 
it  ordained,  established  and  enacted  by  the 
authority  of  the  present  Parliament.  That  at 
all  times  from  henceforth  it  shall  be  lawful  to 
every  person  being  the  King's  subject,  having 
knowledge  and  experience  of  the  nature  of  herbs, 
roots  and  waters,  or  of  the  operation  of  the  same, 
by  speculation  or  practice,  within  any  part  of  the 
realm  of  England,  or  within  any  other  part  of  the 
King's  dominions,  to  practice,  use,  and  minister 
in  and  to  any  outward  sore,  uncome,  wound, 
apostomations,  outward  swelling  or  disease,  any 
herb  or  herbs,  ointments,  baths,  pultess  and  em- 
plaisters,  according  to  their  cunning,  experience 
and  knowdedge  in  any  of  the  diseases,  sores  and 
maladies  beforesaid,  and  all  other  like  to  the 
same,  or  drinks  for  the  stone,  strangury  or  agues, 
without  suit,  vexation,  trouble,  penalty,  or  loss 
of  their  goods,  the  aforesaid  statute  in  the  fore- 
said third  year  of  the  King's  most  gracious  reign, 
or  any  other  act,  ordinance,  or  statute  to  the 


84  HISTORICAL    VIEW. 

contrary  heretofore  made  in  anv  wise  notwith- 
standing." 

The  passage  of  the  above  law  was  highly  ad- 
vantageous to  those  who  possessed  a  knowledge 
of  drugs,  and  skill  in  their  application;  and  on 
account  of  the  encouragement  which  it  gave  to 
this  department  of  science,  it  may  be  regarded 
as  having  been  a  very  significant  force  in  the  de- 
velopment of  modern  excellence  in  pharmacy. 
Yet,  however,  it  was  nearly  three-quarters  of  a 
century  after  this  important  step,  before  the 
apothecaries  of  England  received  full  recogni- 
tion by  the  government  and  acquired  their  pres- 
ent legal  status  as  a  distinct  corporation. 

In  regard  to  the  separation  of  the  apothecaries 
from  the  grocers,  Ordronaux  says :  "Drugs  or 
medicines,  as  a  marketable  commodity,  seem 
originally  to  have  spiimg  from  the  field  of  pro- 
visions among  which  as  it  is  well  known  are  to 
be  found  many  substances  having  a  therapeutic 
as  well  as  an  alimentary  character.  Hence, 
grocers  or  poticaries,  as  they  were  synonomously 
called,  formed  one  of  the  ancient  companies  of 
the  City  of  London,  until  the  year  1615,  (13  Jac. 
1.)  when,  from  the  glaring  mischiefs  already  seen 
to  arise  through  the  sale  of  improper  medicines, 
the  propriety  of  separating  the  apothecaries  from 
the  grocers  company  l)ecame  a  matter  of  public 
necessity.-'^ 

1  Jurisprudence  of  Medicine.     Ordronaux,  pages  254,  255. 


PHARMACAL   JIK  ISPRUDENCE.  85 

The  piraiiiblo  of  a  later  Euj^iisli  statute,  re- 
ferring- to  this  act  of  1615,  says :  "His  Majesty 
King  James  the  First,  by  Letters  Patent,  nnder 
tlie  (xreat  Seal  of  Great  Britain,  bearing  Date 
the  Sixth  <lay  of  December,  in  the  Fifteenth  year 
of  his  ]\eign,  did  for  himself,  his  Heirs  and  Suc- 
cessors, grant  unto  William  Besse,  and  divers 
other  persons  therein  named,  and  to  all  and  sin- 
gular other  Persons  whomsoever,  brought  up  and 
skilful  in  the  Art,  Mystery  or  Faculty  of  Apoth- 
ecaries, and  exercising  the  same  Art,  Mystery 
or  Faculty,  then  being  Freemen  of  the  ^Fystery 
of  Grocers  of  the  City  of  London,  or  being  Free- 
men of  any  other  Art,  Mystery  or  Faculty  in  the 
said  City  of  London  (so  as  they  had  been  brought 
up  and  were  expert  in  the  Art  or  Mystery  of 
Apothecaries)  that  they  and  all  such  Men  of  the 
said  Art  and  Mystery  of  Apothecaries,  of  and  in 
the  said  City  of  London  and  Suburbs  of  the  same, 
and  within  Seven  Miles  of  the  said  City,  might 
and  should  be  one  l^ody  Corporate  and  Politic, 
in  Substance,  Deed  and  Name,  by  the  Name  of 
'The  Master,  Wardens  and  Society  of  the  Art 
and  Mystery  of  Apothecaries  of  the  City  of  Lon- 
don.' "^ 

During  the  years  that  had  passed  since  the  act 
of  1543,  the  apothecaries  had  undoubtedly 
availed  themselves  of  opportunities  to  practice 
medicine,  at  least  to  the  extent  of  the  limits  im- 
posed by  that  act,  and,  judging  from  a  case  which 

1  55  Geo.  III.  Ch.  194,  Preamble. 


86  HISTORICAL    VIEW. 

occurred  early  iu  the  eighteenth  century,  it  seemt^ 
that  they  did  not  uniformly  obsei^'e  those  limits. 
The  case  referred  to  is  that  iu  which  the  College 
of  Physicians  prosecuted  Eose,  in  the  Court  of 
King's  Bench  for  prescribing  a  pill  for  a  butcher 
named  Seale.  They  obtained  a  judgment  against 
Rose,  but,  on  appeal,  the  judgment  was  reversed 
in  the  House  of  Lords ;  that  august  body  consid- 
ering it  to  be  wrong  to  compel  every  sick  person 
to  employ  "a  physician  to  prescribe,  an  apoth- 
ecary to  dispense  and  a  surgeon  to  let  blood."^ 

The  ambition  of  the  apothecaries  seems  to  have 
been  directed  chiefly  toAvards  the  practice  of  med- 
icine, though  it  continued  to  be  their  practice  and 
legal  duty  to  prepare  and  administer  medicines 
under  the  direction  of  properly  qualified  physi- 
cians. The  encouragement  given  to  them  by  the 
courts  as  well  as  by  Parliament,  beginning  with 
the  act  of  1543,  added  materially  to  the  profit, 
dignity  and  general  attractiveness  of  the  pro- 
fession. But,  wherever  there  exists  a  desirable 
field  for  the  exercise  of  human  talent  and  activ- 
ity, among  its  learned  and  worthy  representa- 
tives will  also  be  found  the  encumbering  bulk  of 
the  ignoramus  and  the  resounding  vacuity  of  the 
charlatan;  and  pharmacy  in  England,  as  prac- 
ticed by  the  corporation  of  apothecaries,  under 
those  earlier  statutes,  was  no  more  of  an  excep- 
tion to  the  rule  than  it  was  in  later  times  as 

1  College  of  Physicians  v.  Rose,  3  Salk.  17,  7  Mod.  44  H.  T. 
1703. 


PHARMACAl.    HKISPRrnENTE.  87 

practiced  in  this  country.  The  record  of  mis- 
takes and  malpractice  assnmed,  at  length,  snch 
aggravated  proportions,  and  the  act  of  1615  was 
so  inadequate  to  the  increased  requirements  of 
the  profession,  that  the  apothecaries  themselves 
were  glad  to  seek  relief  at  the  hands  of  Parlia- 
ment from  the  growing  odium  which  necessarily 
attaches  to  the  unrestricted  acts  of  ignorance 
and  fraud. 

In  the  year  1815,  just  two  liundred  years  after 
the  act  Avas  parsed  bv  which  the  apotliecaries 
were  incorporated  originally,  a  comprehensive 
statute  was  enacted  by  Parliament,  by  which  the 
earlier  act  was  altered,  ''varied  and  enlarged,  and 
further  and  other  provisions  made;"  and  the 
fifth  section  of  this  act,  specially  designed  to 
govern  the  apothecaries  in  their  capacity  as 
pharmacists,  says :  "And  Avhereas  it  is  the  Duty 
of  every  Person  using  or  exercising  the  Art  and 
^lystery  of  an  Apothecary,  to  prepare  with  Ex- 
actness, and  to  dispense  such  medicines  as  may 
be  directed  for  the  Sick  by  any  Physician  law- 
fully licensed  to  practice  Physic  by  the  Presi- 
dent and  Commonalty  of  the  Faculty  of  Physic 
in  London,  or  by  either  of  the  two  Universities  of 
Oxfoi'd  or  Cambridge;  Therefore,  for  the  further 
Protection,  Security,  and  Benefit  of  His  Majes- 
ty's Subjects,  and  for  the  better  Regulation  of 
the  Practice  of  Physic  throughout  England  and 
Wales,  be  it  enacted,  That  if  any  Person  using 
or  exercising  the  Art  and  Mystery  of  an  Apoth- 


55  HISTORICAL    VIEW. 

ecary,  shall  at  any  time  knowiii!;»lY.  wilfully  and 
contumaciously  refuse  to  make,  mix,  compound, 
prepare,  give,  apply  or  administer,  or  any  way 
to  sell,  set  on  sale,  put  forth  or  put  to  sale,  to  any 
Person  or  Persons  whatever,  any  Medicines, 
Compound  Medicines,  or  Medicinable  Composi- 
tions, or  shall  deliberately  or  negligently,  falsify, 
unfaithfully,  fraudulently  or  unduly  make,  mix, 
compound,  prepare,  give,  apply  or  administer,  or 
any  way  sell,  set  on  sale,  put  forth  or  put  to  sale 
to  any  Person  or  Persons  whatever,  any  Medi- 
cines, Compound  Medicines  or  Medicinable  Com- 
pounds, as  directed  by  any  Prescription,  Order 
or  Receipt,  signed  with  the  Initials  in  his  own 
Hand-writing,  of  any  Physician  so  lawfully 
licensed  to  practice  Physic,  such  Person  or  Per- 
sons so  offending  shall  upon  Complaint  made 
within  twenty-one  Days  by  such  Physician,  and 
upon  Conviction  of  such  Offense  before  any  of 
His  Majest^^'s  Justices  of  the  Peace,  unless  such 
offender  can  show  some  satisfactory  Reason,  Ex- 
cuse or  Justification  in  his  behalf,  forfeit,  for  the 
First  Offense,  the  sum  of  Five  Pounds;  for  the 
Second  Offense  the  sum  of  Ten  Pounds;  and  for 
the  Third  Offense  he  shall  forfeit  his  certificate, 
and  be  rendered  incapable  in  future  of  using  or 
exercising  the  Art  and  Mystery  of  an  Apothe- 
cary, and  be  liable  to  the  Penalty  inflicted  by  this 
Act  upon  all  who  practice  as  such  without  a 
certificate,"  etc.^ 

1  55  Geo.  Ill,  Ch.  194. 


PHARMACAL    JURISPRUDENCE.  iiV 

The  act  provides  for  a  Court  of  Examiners  to 
test  the  qualifications  and  fitness  of  those  who 
aspire  to  become  apothecaries,  and  to  issue  cer- 
tificates to  all  such  as  they  find  to  be  properly 
(pialified  to  practice.  It  prohibits  from  practic- 
ing* all  persons  ''(except  persons  already  in  prac- 
tice as  such)-'  who  are  without  such  certificates 
aud  provides  penalties  for  violation  of  the  stat- 
ute. 

Before  this  act  of  1815  was  passed,  there  had 
grown  up  in  England  outside  of  and  distinct 
from  the  corporation  of  Apothecaries,  a  class  of 
business  men  known  as  chemists  and  druggists, 
whose  occupation  seems  to  have  been  about  the 
same  as  that  of  the  pharmacist  of  to-day ;  though, 
probably,  they  did  not  enjoy  the  same  breadth 
of  scientific  knowledge  and  training.  The  prac- 
tice of  the  chemist  and  druggist  of  that  period 
does  not  appear  to  have  been  the  object  of  any 
restrictive  legislation;  but  they  exercised  their 
"Trade  or  Business"  free  from  any  rule  of  posi- 
tive law  as  to  examination  or  qualification,  and 
their  liability,  like  that  of  the  grocers,  was  gov- 
erned entirely  by  the  principles  of  the  common 
law.  They  are  expressly  exempted  from  the 
operation  of  the  act  of  1815,  by  the  provisions  of 
Section  28  which  says:  "Provided  always,  and 
be  it  further  enacted.  That  nothing  in  this  Act 
contained  shall  extend,  or  be  construed  to  ex- 
tend, to  prejudice,  or  in  any  way  to  affect  the 
Trade  or  Business  of  a  Chemist  and  Druggist,  in 


90  HISTORICAL    VIEW. 

tlio  buying',  prepariiio-,  coinpoiiiKlino-,  dispensing 
and  vending  Drugs,  Mediciuos  and  Medioinable 
Compounds,  wholesale  and  retail;  but  all  Per- 
sons using  or  exercising  the  said  Trade  or  Bus- 
iness, or  who  shall  or  may  hereafter  use  or  exer- 
cise the  same,  shall  and  may  use,  exercise  and 
carry  on  the  same  Trade  or  Business  in  such 
manner,  and  as  fully  and  amply  to  all  Intents 
and  Purposes,  as  the  same  Trade  or  Business  was 
used,  exercised  or  carried  on  by  Chemists  and 
Druggists  before  the  passing  of  this  Act." 

The  policy  of  the  English  law,  as  it  appears 
from  the  statute  last  under  discussion,  seems  to 
have  been  hardly  uniform  in  its  operation.  The 
right  to  practice  pharmacy,  as  exercised  by  the 
members  of  the  corporation  of  apothecaries,  was 
enjoyed  only  under  distinct  legal  restrictions  as 
to  qualificaticms  and  general  fitness;  while  the 
same  right  was  freely  exercised  by  the  chemists 
and  druggists  without  any  such  legal  limitations. 
It  is  possible  that  the  duties  of  an  apothecar}', 
acting  in  the  capacity  of  a  pharmacist,  may  have 
been  regarded  as  of  a  more  highly  responsible 
character  than  those  of  the  chemist  and  druggist, 
owing  to  the  fact  that  the  former  were  required, 
not  only  to  compound  the  medicines  prescribed 
by  the  physician,  but  also  to  "give,  apply  or  ad- 
minister the  same  to  the  patient." 

European  legislation  relating  to  pharnuicy  has 
proceeded  on  lines  nearly  parallel  to  that  fol- 
lowed in  England.     Concerning  the  French  stat- 


PHARMACAL    JURISPRUDENCE.  91 

utes  reoulating  the  practice  of  apothecaries, 
Ordronaux  says:  "In  1484,  under  Charles  VIII 
of  France,  several  ordinances  were  passed  bear- 
ini>-  upon  their  rights  and  duties;  these  ordi- 
nances were  further  added  to  under  Louis  XII, 
in  1514 ;  under  Francis  I,  in  151(5  and  1520 ;  under 
Charles  IX,  in  1571 ;  under  Henr^^  III,  in  1583, 
and  Henry  IV,  in  1598.  Louis  XIII  confirmed 
their  ancient  charters  in  1611  and  1624,  and  in 
1638  appeared  the  final  statutes  under  which  the 
corporation  has  ever  since  governed  itself." 
Speaking  of  the  legal  status  of  apothecaries  as 
compared  with  that  of  the  ordinary  druggist  in 
France,  he  says :  "The  code  Napoleon  makes  a 
trenchant  distinction  between  apothecaries  and 
simple  druggists,  in  the  rights  severally  accorded 
them  to  deal  in  drugs.  The  former,  who  are  as- 
sumed to  be  pharmaceutically  educated,  are  alone 
allowed  to  sell  compounded  medicines;  the  lat- 
ter, who  are  mentioned  in  it  along  with  grocers, 
are  only  permitted  to  sell  drugs  of  a  simple  char- 
acter, in  bulk  and  at  wholesale."^ 

The  regular  apothecary,  on  the  English  plan, 
does  not  seem  to  satisfy  the  requirements  of 
either  pharmacy  or  medical  practice  in  the 
United  States,  and  the  "doctor's  sho])"  is  au  in- 
stitution which  is  not  in  harmony  \vit]i  the  pre- 
vailing American  idea  as  to  the  highest  i)ossibil- 
ities  of  either  of  the  learned  professions,  between 
which  in  EIngland  it  forms  a  kind  of  rusty  link. 
The  and)ition  of  the  earlier  English  apothecary 


92  HISTORICAL    VIEW. 

to  practice  medicine  lias  been  worked  out  to  a 
point  of  realization  by  his  successors,  and  the 
Avorld  has  witnessed  in  him,  the  evolution  of  a 
doctor  from  the  primitive  vender  of  drugs  and 
medicines — a  doctor  who  yet  maintains  his  apoth- 
cca  or  shop,  while  doing  a  large  proportion  of 
the  medical  practice  of  his  country.  He  con- 
tinues to  be  a  combination  of  the  skilled  phar- 
macist and  the  licensed  medical  practitioner. 
The  tendency  of  medical  science  in  America  is 
toward  maintaining  and  fostering  a  distinct, 
scientific  and  well-educated  profession  of  phar- 
macy on  the  one  hand,  and  an  exclusive,  re- 
stricted, and  highly  trained  body  of  physicians 
on  the  other;  while  the  legislatures  of  the  several 
states  have  shown  themselves  to  be  in  sympathy 
with  a  doctrine  that  is  at  once  ethically  sound, 
and  eminently  practical  in  operating  to  protect 
the  lives  and  health  of  the  people. 


PHARMACAL   JURISPRUDENCE.  93 

niAPTEK    III. 

Legal  Limits  of  Phaioiacy. 

Pharmacy  is  defined  as  "The  art  or  practice  of 
prepariuo-  and  preserving;  drn<2;s  and  of  com- 
pounding- and  dispensing-  medicines  according  to 
the  prescriptions  of  physicians ;"  and  a  pharma- 
cist is  "One  skilled  in  the  art  and  science  of  com- 
pounding and  preparing  medicines."  The  word 
])harmacist  is  derived  from  tlie  (JreiMv  word  phar- 
makeia,  from  phaniial-cKciu ,  meaning  to  admin- 
ister or  use  drugs. 

From  the  definitions  given  in  the  ])receding 
paragraph,  it  may  be  said  that  the  "practice  of 
pharmacy"  is  the  practical  application  of  the 
principles  of  the  science  of  pharmacy  to  the 
actual  preparing,  preserving,  compounding,  or 
dispensing  of  medicines.  The  courts  of  this 
country  have  not  yet  defined  the  exact  scope  of 
the  practice  of  pharmacy,  by  furnishing  us  a 
judicial  statement  of  the  limits  within  which  the 
operations  of  the  pharmacist  must  be  confined ; 
but  the  New  York  statute,  regulating  the  "prac- 
tice of  pharmacy,"  indicates  that  the  latter  term 
signifies  the  compounding  of  prescriptions,  or  of 
any  T^.  S.  phannacopoeial  preparation  or  of  any 
drug  or  poison,  to  be  used  as  a  medicine,  and  the 
retailing  of  any  drug  or  poison.  This  may  serve 
as  a  legal  definition  and  will  probably  be  found 
in  liarmony  with  the  spirit  of  each  of  the  several 


94  LEGAL    LIMITS. 

State   statutes   ou    the   subjeet   throiiohout    the 
Union. 

In  our  endeavor  to  arrive  at  a  useful,  working 
idea  of  this  branch  of  our  subject,  it  will  be  well, 
at  the  beginning,  to  remember  that  the  qualified 
pharmacist  stands  in  the  relation  of  beneficiary 
to  the  statutory  provisions  regulating  the  prac- 
tice of  his  profession.  The  limitations  embraced 
in  those  provisions  are  directed  against  the  inter- 
ference or  encroachments  of  those  who  are  not 
legally  qualified  to  practice  pharmacy;  thus  giv- 
ing to  the  lawful  practitioner  the  exclusive  priv- 
ileges peculiar  to  that  profession,  wliile  leaving 
him  in  the  unrestricted  enjoyment  of  all  rights 
and  immunities  possessed  by  the  ordinary  lay 
member  of  society.  It  might  appear  from  this 
view  of  the  case,  that  in  the  general  adjustment 
of  professional  rights,  the  pharmacist  had  been 
left  without  any  legal  restrictions  upon  the  field 
of  his  operations ;  and  such  might  have  been  the 
case  had  his  profession  been  the  only  one  which 
the  policy  of  the  law  saw  fit  to  protect.  As  it  is, 
hoAvever,  the  law  has  thrown  around  certain 
other  professions,  regulating  and  protecting  lim- 
itations similar  to  those  which  guard  from  en- 
croachment the  legitimate  field  of  the  pharma- 
cist; and  it  is  to  tliese  that  the  pharmacist  must 
look  for  the  legal  danger  line  beyond  which  he 
must  not  pass.  The  profession  of  pharmacy,  in 
its  very  nature  is  kindred  and  contiguous  to  the 
medical  profession.     They  possess  a  common  but 


rHAR>rACAr,  irRisrRrnENXR.  95 

i-learl.v  di'tiued  frontier  lino,  which  has  long  been 
the  scene  of  mutual  trespasses,  and  has  served  to 
repress  or  limit  the  operations  of  the  pharmacist 
in  that  direction. 

What  the  pharmacist  may  legally  do,  in  excess 
of  the  rights  of  other  citizens,  is  implied  with  suf- 
ficient clearness  in  the  definitions  of  ''phar- 
macy," ''pharmacist,''  and  "practice  of  phar- 
macy," alrexidy  given  in  this  chapter.  What  he 
must  refrain  from  doing  is,  in  general,  em- 
braced within  the  negative  obligations  of 
every  good  citizen ;  but  it  is  necessary  to  treat 
this  subject  in  a  more  specific  sense,  by 
directing  our  investigations  to  those  points 
Avhich  are  of  peculiar  danger  to  the  phar- 
macist, in  consequence  of  their  presenting 
the  temptation  offered  by  frequently  recurring 
opportunity.  As  already  indicated,  the  greatest 
danger  of  this  kind  lies  along  the  line  between 
pharmacy  and  medicine,  and  the  limits  there  im- 
posed may  be  best  understood  by  studying  the 
prohibitory  features  and  application  of  the  stat- 
utes regulating  the  practice  of  medicine. 

Tender  the  statutes  of  the  several  States  pro- 
hibiting the  practice  of  medicine  by  any  person 
not  authorized  by  law  to  do  so,  we  find  several 
interesting  decisions  in  which  the  restricti<ms  in- 
tended to  be  imposed  upon  unlicensed  practi- 
tioners are  clearly  discussed  and  applied.  In 
examining  these  cases  it  should  be  kept  in  mind 
that  the  pharmacist,  though  licensed  to  practice 


96  LEGAL    LIMITS. 

his  own  profession,  occupies  no  better  position, 
so  far  as  concerns  the  ri^ht  to  practice  medicine, 
than  that  held  by  any  other  person,  and  that  the 
limitations  imposed  by  law  operate  against  all 
with  equal  stringency. 

Those  persons  Aylio  haye  undertaken  to  openlj' 
defy  these  statutes  regulating  the  practice  of  med- 
icine, have  generally  relied  upon  being  able  to 
successfully  attack  their  constitutionality,  just 
as  similar  etforts  have  been  made  to  defeat  the 
acts  regulating  the  practice  of  pharmacy  and  the 
practice  of  dentistry;  but  the  constitutional  ques- 
tions raised  in  this  connection  will  be  considered 
in  another  chapter.  It  Ayill  suffice  to  say  here 
that  the  statutes  have  been  uniformly  upheld. 

The  cases  which  claim  our  attention  under  the 
heading  of  this  chapter  are  mainly  such  as  haye 
arisen  through  attempted  evasions  of  the  law, 
and  wherein  either  some  person  has  been  prose- 
cuted for  illegal  practicing,  or  suit  has  been 
brought  by  an  unauthorized  practitioner  to  col- 
lect fees  for  illegal  services,  under  the  cover  of 
a  claim  for  medicines  sold;  thus,  in  the  latter 
case,  bringing  the  issues  raised  very  near  to  the 
domain  of  pharmacy. 

In  an  early  New  York  case,  it  was  held  that 
no  person,  practicing  without  a  license,  could  re- 
cover for  services  rendered  or  medicines  fur- 
nished as  a  physician  or  surgeon.^  In  the  same 
State,  in  the  year  1828,  Barber,  the  plaintiff  in 

1  Timmerman  v.  Morrison.     14  Johns,  370. 


PHARMACAL   JURISPRUDENCE.  97 

the  lower  court,  but  defeiulaiit  on  appeal,  was  an 
nnlicensed  practitioner,  and  commenced  an  ac- 
tion against  Alcott  "for  botanical  medicines  for 
daiiohter,  at  three  different  times  in  the  year 
1824,  amonnting  to  |18."  One  point  in  the  de- 
fense was  "that  the  plaintiff  was  not  a  licensed 
physician,'-  and  therefore  not  entitled  to  recover. 
The  plaintiff  obtained  a  judgment  in  the  lower 
court  for  IIS.OO.  On  appeal.  Chief  Justice  Sav- 
age delivered  the  opinion  of  the  court,  which, 
being  short,  is  here  presented  in  full.  "This  case 
seems  to  be  an  attempt  to  evade  the  statute, 
which  prohibits  a  recovery  by  a  medical  prac- 
titioner who  is  not  regularly  licensed.  The  coun- 
sel for  the  defendant  in  error  takes  a  distinction 
between  the  practitioner  of  physic  and  apothe- 
cary, which  undoubtedly  is  correct,  but  seems  to 
me  not  applicable  to  this  case.  The  defendant  in 
error  traveled  three  times  from  Auburn  to  Roch- 
ester, to  visit  the  plaintiff's  daughter.  He  was 
sent  for  after  other  physicians  could  do  no  more. 
He  came  and  prescribed  for  the  patient,  and 
cured  her  by  the  use  of  two  phials  of  medicine 
and  a  box  of  ointment.  What  the  medicines  were 
the  witness  knew  not.  She  was  asked  the  value 
of  the  medicine,  simply,  for  her  answers  show 
that  she  estimated  the  services  of  the  defendant 
in  error  as  worth  fid  or  |1 8,  because  the  patient 
was  cured.  The  medicine  at  the  apothecary's 
shop  would  probably  have  been  worth  only  a  few 


98  LEGAL    LIMITS. 

sliillings;  but  here  the  witness  and  the  jury  un- 
doubtedly estimated  the  service  of  the  pliysician. 
When  the  same  person  officiates  as  physician  and 
ai^othecary,  he  comes  Avithiu  the  decision  of  this 
court  (Timmernian  v.  Morrison,  14  Johns.  309) 
that  an  unlicensed  practitioner  is  incapable  of 
suing  for  services  rendered  or  medicines  fur- 
nished, as  a  physician.  As  the  patient  was  cured, 
it  is  to  be  regretted  that  Barber  was  not  paid ; 
Imt  if  unlicensed  pretenders  to  skill  in  diseases 
can  recover  as  in  this  case,  the  statute  may  be- 
come a  dead  letter;  the  country  will  be  tilled  with 
mere  quacks,  peddling  their  nostrums,  and  de- 
ceiving and  destroying  the  ignorant  and  credu- 
lous, the  very  mischief  which  the  statute  is  in- 
tended to  prevent.  I  do  not  say  that  the  defen- 
dant in  error  is  a  mere  pretender,  for  he  cured  his 
patient,  and  in  honor  and  honesty,  should  have 
been  paid;  but  it  is  our  duty  to  administer  the 
law.  I  am  of  opinion  that  the  court  erred,  and 
that  the  judgment  below  must  be  reversed."^ 

In  the  year  following  that  which  Alcott  v. 
Barber  was  decided,  New  York  furnished  another 
ease  in  which  the  court  endorsed  the  earlier  de- 
cisions, and  in  wliicli,  also,  was  introduced  the 
patent  medicine  phase  of  the  contest. 

In  this  case  the  unlicensed  practitioner,  Tracy, 
sued  his  patient.  Smith,  to  recover  the  alleged 
price  of  medicine  furnished  by  the  plaintiff.     The 

1  Alcott  V.  Barber.     1  Wend.  526. 


PHARMACAI,   jrRISI'Rt  OKNXE.  99 

defense  was  based  upon  that  part  of  the  New 
York  statute  ^^■hieh  tlieu  provided  that  every  per- 
son "not  autliorized  bv  law,  who,  for  any  fee  or 
reward,  shall  practice  physic  or  surgery,  within 
the  State,  shall  be  incapable  of  recovering  by  suit 
any  debt  arising  from  such  practice."  In  ren- 
dering its  decision  the  court  said:  "In  the  case 
of  Tinnnernian  v.  ^Morrison,  the  Supreme  Court 
lield,  that  no  person,  practicing  witliout  a  license, 
ccmld  recover  for  services  rendered  or  medicine 
furiiislied  as  physician  or  surgeon.  It  is  con- 
tended by  tlie  plaintitf,  that  the  patent  in  evidence 
in  the  case,  gives  him  the  right  to  sell  the  medi- 
cines in  question,  notwithstanding  the  pro- 
vision of  the  State  law,  and  his  general  right  to 
sell  the  medicines,  as  an  apothecary,  is  not  ques- 
tioned in  this  case.  The  patent  confers  no  ad- 
ditional right  on  him,  but  precludes  others  from 
selling  or  using  them.  The  State  law,  by  the 
construction  given  to  it  by  the  Supreme  Court, 
prohibits  him  from  peddling  his  medicines,  in 
the  character  of  a  physician,  and  inducing  people 
to  buy  and  use  them,  in  consequence  of  their  re- 
liance on  his  pretended  skill.  Such  practices  the 
law  of  the  State  has  declared  to  be  dangerous  to 
the  public  health,  and  if  the  jjatent  in  question 
had  authorized  him.  in  express  terms,  to  vend 
this  medicine  in  tlie  manner  in  which  he  has  done 
in  this  case,  T  slnuild  have  no  hesitation  in  hold- 
ing that  tlie  ])ateiit  would  be  inoperative  against 
the  provision  of  the  law." 


100  LEGAL    LIMITS. 

It  was  lield  also,  in  this  case,  tliat  the  fact  that 
the  defendant  knew,  wlien  he  employed  the  plain- 
tiff, that  the  latter  was  unlicensed,  does  not  dis- 
tinguish the  case  from  Alcott  v.  Barber.^ 

In  the  New  York  reports  we  find  a  case,  de- 
cided in  1836,  in  which  a  person,  not  licensed  to 
practice,  appears  as  the  defendant,  being  pros- 
ecuted for  prescribing  a  patent  medicine.  This 
case  was  appealed  from  the  Mayor's  court  of  the 
city  of  Albany. 

"Staats  sued  Thompson  in  the  Justices'  Court 
of  the  City  of  Albany  for  practicing  physic,  not 
being  authorized  by  law.  It  was  proved  that  the 
defendant  visited  a  sick  man,  felt  his  pulse  and 
gave  him  medicine,  which  he  took,  and  charged 
and  received  two  dollars  from  the  patient.  The 
defendant  offered  in  evidence  letters  patent, 
granted  under  the  laAvs  of  the  U.  S.  to  Samuel 
Thompson,  28th  of  June,  1823,  authorizing  him 
and  his  assigns,  for  the  term  of  14  years,  to  make, 
construct,  use,  and  vend  to  others  to  be  used 
a  certain  improvement  in  the  preparing,  mixing, 
compounding,  administering  and  using  certain 
medicines,  and  offered  to  prove  that  the  de- 
fendant (John  Thompson)  was  an  assignee  of 
the  patentee,  and  that  the  medicine  administered 
by  him  to  the  patient  was  composed  of  the  ma- 
terials^ and  compounded  in  the  manner  described 
in  the  schedule  annexed  to  the  letters  patent ; 

1  Smith  V.  Tracy.     2  Hall  N.  Y.,  465  (501). 


PHARMACAI.    JURISPRUDEN'CE.  101 

and  insisted  tluil  as  sncli  assiuiico  he  had  tlic 
i'i«ilit  under  the  patent,  to  adniinistei-  sm-li  medi- 
cine, without  IxMiiii  licensed  to  practice  pliTsie, 
as  re(]uired  by  the  laws  of  this  State.  The  evi- 
dence was  objected  to  by  the  jdaintill'  and  re- 
jected by  tlie  court.  The  cause  was  tried  by  a 
jury,  who  found  a  verdict  for  the  plaintiff  for 
|:10,  f(U'  whicli  sum  judgment  was  rendered.  The 
Mayor's  court  of  Albany,  on  certiorari,  affirmed 
the  judgment,  and  the  defendant  sued  out  a  writ 
of  error." 

On  appeal  tlie  following  opinion  was  handed 
down  by  the  Court,  Nelson,  Jr.  "The  letters 
patent  were  properly  rejected  as  irrelevant.  They 
only  authorize  the  patentee  and  his  assigns  to 
make,  construct,  use  and  vend  his  newly  dis- 
covered compound  of  medicine;  not  'to  practice 
physic  or  surgery,'  within  the  regulations  of  the 
statutes  of  this  State,  as  found  in  1  R.  S.  454, 
S.  16  and  19.  This  affords  a  sufficient  justifi- 
cation for  the  decision,  if  there  were  no  other 
reason  for  it.  When  the  terms  of  the  patent  are 
broad  enough  to  enable  the  patentee  to  put  him- 
self upon  a  footing  with  these  statutes,  it  will  be 
time  enough  to  consider  the  constitutional  ques- 
tion raised  by  the  defendant,  how  far  the  law  of 
Congress  under  whicli  the  patent  was  grantefl, 
and  the  laws  of  this  State  regulating  the  prac- 
tice of  physic  and  surgery,  come  in  collision.  The 
defendant  pretended  to  no  authority  to  practice 
physic  under  the  laws  of  this  State,  and  whether 


102  LEGAL    LIMITS. 

he  had.  thus  practiced  Avas  a  question  of  fact 
which  the  jury  found  against  him.  Judgment  af- 
firmed."^ 

The  decisions  of  the  New  York  courts  show 
the  law  in  that  State  as  administered  under  ear- 
lier statutes  prohibiting  the  practice  of  medicine 
without  certain  legal  qualifications.  But,  in 
1844,  an  act  was  passed  by  the  legislature  of  the 
State  which  had  the  effect  of  abolishing  all  pre- 
vious statutes  regulating  the  practice  of  medi- 
cine, and  authorizing  anyone  to  practice  physic 
or  surgery,  without  any  license,  and  to  ''prescribe 
for  or  administer  medicines  or  specifics,  to  or  for 
the  sick,"  and  permitting  anyone  to  recover  for 
services  so  rendered,  simply-  at  the  peril  of  being 
sued  for  malpractice,  and  if  convicted  of  mal- 
practice, gross  ignorance  or  immoral  conduct,  of 
being  punished  as  for  a  misdemeanor.  As  a  conse- 
quence of  this  statute,  we  find  no  cases  applicable 
to  the  present  discussion  during  a  period  of  thirty 
years  of  New  York's  legal  history ;  but  in  1874  the 
matter  was  again  made  the  subject  of  legislation, 
and  an  act  was  passed  making  it  a  misdemeanor 
for  any  person  to  practice  medicine  or  surgery 
who  is  not  authorized  to  do  so  by  a  license  or  di- 
ploma from  some  chartered  school,  state  board  of 
medical  examiners  or  medical  society,  or  who 
shall  practice  under  cove  r  of  a  medical  diploma 
illegally  obtained.^ 

1  Thompson  v.  Staats,  15  Wend.  395. 

2  Laws  of  1874.     P.  557,  Sec.  3. 


PHARNFACAI.   JURISPRUDENCE.  103 

Since  the  passage  of  the  act  last  referred  to, 
New  York  has  to  the  present  time  niMintniHe<l 
laws  regulating  and  restricting  llic  lunclire  of 
medicine  on  or  about  the  same  lines,  generally 
speaking,  as  the  statutes  under  which  the  de- 
cisions quoted  in  this  chapter  were  rendered ;  so 
that  the  principles  therein  stated  are  applicable 
to  the  determination  of  issues  that  may  arise  out 
of  such  illegal  practice  at  the  present  time. 

In  a  New  York  case,  decided  under  the  statute 
of  1880,  it  was  held  that  no  compensation  can  be 
recovered  by  a  physician  practicing  without  legal 
authority,  although  the  statute  does  not  ex- 
pressly forbid  such  recovery.^ 

The  State  of  North  Carolina  lia>s  furnished  a 
case,  decided  in  1891,  of  some  interest  as  showing 
the  difference  between  the  legal  status  of  him 
who  prescrihes  a  patent  medicine,  and  of  him 
who  simply  sells  it.  The  statute  under  which  the 
case  was  tried  provides  "That  any  person  who 
shall  practice  or  attempt  to  practice  medicine  or 
surgery  in  this  State  without  first  having  regis- 
tered and  obtained  the  certificate  as  aforesaid, 
shall  be  guilty  of  a  misdemeanor."^  The  court 
said  "If  the  defendant  merely  held  himself  out 
to  the  public  as  a  physician  or  surgeon,  he  was 
guilty  of  the  offense  created  by  the  statute."  "An 
unlicensed  person,  claiming  to  be  a  ])hysician 
and  holding  himself  out  to  the  world  as  such, 

1  Fox  V.  Dixon.     12  N.  Y.  .Supp.  267,  58  Hun.  60."). 

2  N.  C.  Acts  of  81).     C.  181,.S.  5. 


104  LEGAL    LIMITS. 

cannot,  after  examining  a  person  who  has  asked 
his  services,  diagnosing  the  disease,  fixing  an 
amount  or  price  for  wliich  he  will  cure  the  pa- 
tient and  giving  him  a  prescription,  evade  the 
law  by  proving  that  the  remedy  administered  was 
a  proprietary  remedy,  prepared  and  used  by 
him."  Touching  the  rights  of  a  seller  of  a  patent 
medicine,  the  court  said :  "A  vender  of  patent 
medicines  who  does  not  pretend  to  diagnose  dis- 
ease and  determine  which  of  the  remedies  is 
proper  in  a  particular  case,  is  not  a  violator  of 
this  statute."^ 

In  a  Kansas  case,  decided  in  1890,  the  court  de- 
fines "practice  of  medicine,''  and  also  squarely 
meets  the  question  as  to  whether  or  not  a  person, 
not  authorized  to  practice  medicine,  may  re- 
cover the  price  of  medicines  furnished  by  him  as 
a  physician.  The  Kansas  statute  enacted  to  pre- 
vent empiricism,  provides:  "That  it  shall  be 
unlawful  for  any  jierson  within  the  limits  of  the 
State  of  Kansas,  who  has  not  attended  two  full 
courses  of  instruction  and  graduated  in  some 
respectable  school  of  medicine,  either  of  the 
United  States  or  some  foreign  country,  or  who 
cannot  produce  a  certificate  of  (pmlification  from 
a  state  or  county  medical  society,  and  is  not  a 
person  of  good  moral  character,  to  practice  med- 
icine in  any  of  its  departments  for  rewar<l  or 
compensation,   for   any   sick    ])('rson    within    <he 

1  State  V.  Van  Doran,  109  N.  C.  864,  14  S.  E.  Rep.  82. 


PHARMACAL   JURISPRUDENCE.  105 

State  of  Kaiisjis."'  In  I  he  case  rcfcn'cd  to,  th(^ 
court  said:  ''To  liold  that  a,  person  who  fur- 
nished iiiedieiue  as  a  pliysieiau,  could  recover 
compensation  for  tlie  medicine  so  furnished  or 
prescribed,  would,  in  our  judonient  render  the 
statute  nugatory,  and  any  unauthorized  person 
might  prescribe  for  a  patient  and  simply  charge 
for  his  medicine,  and  thus  defeat  the  very  objects 
of  the  law.  The  practice  of  medicine  may  be 
said  to  consist  in  three  things :  First,  in  judg- 
ing the  nature,  character  and  symptoms  of  the 
disease;  second,  in  determining  the  proper  rem- 
edy for  the  disease ;  third,  in  giving  or  prescribing 
the  application  of  the  remedy  to  the  disease.  If 
the  person  who  makes  a  diagnosis  of  a  case  also 
gives  the  medicine  to  the  patient,  he  is,  in  our 
judgment  practicing  medicine  within  the  pro- 
visions of  the  statute  in  question;  and  if  unau- 
thorized to  practice,  or  is  acting  in  violation  of 
the  provisions  of  the  statute,  he  is  not  entitled  to 
compensation  f<u'  the  medicine  which  he  furnishes 
at  the  time,  as  a  physician  ;  and  the  instruction  of 
the  court  which  said  to  tlie  jury  that  the  plaintiff 
below  could  recover  for  the  medicine^  furnished, 
tlumgh  he  might  not  have  been  entitled  to  prac- 
tice medicine,  was  erroneous;  and  for  this  reason 
the  judgment  of  the  c<mrt  l)elow  should  be  re- 
versefl.-'^ 

1  Gen.  Stat.  1889,  2450. 

'■^  Underwood  v.  Scott.     4;!  Kiis.  714,  -j:',  Tac.  1)42. 


106  LEGAL.    LIMITS. 

Ill  ;i  California  case,  (U'cidod  in  1889,  it  ap- 
jieared  that  tlie  plaintitt",  who  was  a  physician 
and  surgeon,  had  eoiiinienced  the  treatment  of 
his  patient  before  receiving  his  certificate  to  prac- 
tice. The  treatment  Avas  continued,  liowever,  for 
a  long  time  after  the  plaintiff  had  received  and 
r(H-orded  his  certificate,  (hi  a])])eal  the  court 
held  tliat  the  issuance  of  the  certificate  to  the 
physician  did  not  relate  back  to  the  time  that 
his  services  began,  and  that,  therefore,  during 
the  time  prior  to  the  issuance  of  the  certificate, 
he  was  practicing  medicine  in  violation  of  the 
statute,  and  was  entitled  to  recover  ])ay  only  for 
the  time  subseiiuent  to  the  granting  of  his  cer- 
tificate. On  this  point  two  of  the  justices  dis- 
sented.^ 

Section  i\,  of  "An  Act  to  regulate  the  prac- 
tice of  medicine  in  the  State  of  California,"  as 
amended  in  1878-9,  provides  that  "Any  person 
shall  be  regarded  as  practicing  medicine,  within 
(he  meaning  of  this  act,  who  shall  profess  ])ub- 
licly  to  be  a  physician,  or  who  shall  habitually 
prescribe  for  the  sick,  or  who  shall  append  to  his 
name  the  letters  'M.  D.';  but  nothing  herein  con- 
tained shall  be  construed  to  prohibit  gratuitous 
services  in  cases  of  emergency."  In  a  case  en- 
titled "People  V.  Lee  Wah,"^  the  trial  court,  in 

1  Gardner  v.  Tatum  et  al.     81   Cal.  870,  22  Pac.  880,  4  Cal. 
Notes  554. 

2  71  Cal.  80,  11  Pac.  851,  4  Cal.  Notes  8i;i 


rHAKMACAI.   jURISPKlDfCNCE.  107 

its  instructions  to  the  jury,  detinod  "enicri>oncy" 
as  "a  case  in  which  the  ordinary  medical  prac- 
titioners of  the  schools  provided  for  by  the  State, 
who  are  provided  with  the  proper  diplomas,  and 
submitted  themselves  to  tlie  proper  examination, 
are  not  readily  obtainable.  This  is  an  emergency 
as  where  the  exigency  is  of  so  pressing  a  char- 
acter that  some  kind  of  action  must  be  taken  be- 
fore such  parties  can  be  found  or  procured."  In 
this  case  the  court  held  that  the  fact  that  the 
patient  has  been  given  up  by  regular  physicians 
does  not  constitute  an  ''emergency''  in  the  mean- 
ing of  the  statute. 

The  decisions  which  have  been  under  consider- 
ation in  this  chapter,  marking  the  frontier  bar- 
rier of  the  medical  profession,  will,  by  making 
a  practical  application  to  the  pharmacist  of  the 
points  decided,  serve,  in  a  reasonable  degree,  to 
determine  the  limits  of  the  practice  of  pharmacy 
on  the  side  Avliich  is  contiguous  to  the  practice  of 
medicine.  The  statutes  regiilating  the  practice 
of  medicine,  of  the  kind  under  which  these  cases 
arose,  are  now  so  generally  maintained  in  the 
American  states  and  Great  Britain,  as  to  make 
the  principles  decided  ()f  almost  universal  a])])li- 
cation  throughout  the  two  countries.  However, 
since  these  statutes  are  subject  to  freciuent 
amendment,  most  commonly  on  minor  points  but 
sometimes  going  to  the  very  lieart  (»f  the  subject, 
it  is  always  well  foi-  llie  plinniiacist  to  note  all 


108  LEGAL    LIMITS. 

legislative  inoveiiieiits  in  his  state  on  lines  so 
close  to  the  interests  of  his  own  vocation. 

We  will  now  present  a  brief  summary  of  the 
more  significant  points  decided  in  these  cases. 
It  seems,  from  the  weight  of  authority  of  gen- 
eral application  in  states  where  the  practice  of 
medicine  is  regulated  by  statute,  that  a  person 
would  be  acting  in  violation  of  the  law  if  he 
simply  held  himself  out  to  the  public  as  a  phy- 
sician, without  actually  having  either  diagnosed 
or  prescribed  in  any  case  whatever. 

The  rule  just  stated  presents  perhaps,  the  most 
extreme  position  so  far  taken  by  the  courts  and 
it  is  the  one  least  likely  to  be  encountered  by  the 
pharmacist.  He  is  more  concerned  with  the  rule 
that  one  not  authorized,  who  diagnoses  a  case  and 
gives  a  remed}'^  for  it,  is  guilty  under  the  pre- 
vailing statutes.  Now,  to  diagnose  is  ''to  dis- 
tinguish a  disease  by  its  characteristic  phenom- 
ena," and  to  do  this,  whether  correctly  or  not,  is 
sometimes  a  very  simple  process,  and  may  be 
done  by  a  person  when  standing  behind  the  coun- 
ter of  a  drug  store,  without  fully  realizing  the 
legal  significance  of  his  own  net.  A  person  en- 
ters the  store,  possibly  of  one  with  whom  he  is 
acquainted,  and  complains  of  not  feeling  very 
well.  There  is  nothing  more  natural  in  such  a 
case  than  that  the  pro])rietor  or  clerk  who  meets 
him  shimld  ask  a  question  or  two  relative  to  his 
symi)toms,  and  thereupon   suggest  some  simple 


PHARMACAL   JURISPRUDENCE.  109 

means  of  relief  or  reiiuHly,  which  he  immediately 
proceeds  to  prepare  and  sell  to  his  pdticut.  In 
the  case  here  assumed,  the  pharmacist  has  both 
diaunosed  and  prescribe<l,  makiuji'  the  offense 
complete;  and  vet  throughout  the  entire  trans- 
action, may  have  been  quite  innocent  of  any  crim- 
inal intent,  or  of  any  deliberate  purpose  of  en- 
croaching upon  the  exclusive  rights  of  a  sister 
])rofession. 

So  long  as  the  small  professional  trespasses 
are  of  only  occasional  occurence  in  the  practice 
of  any  individual  pharmacist,  it  is  probable  that 
they  vidll  not  result  in  subjecting  him  to  legal 
interference;  but  when  such  offenses  become 
marked  and  characteristic  of  his  practice,  he  is 
in  danger  of  being  regarded  as  a  sort  of  nuisance 
that  must  be  suppressed,  and  of  being  subjected 
to  a  prosecution  that  could  hardly  fail  to  be  suc- 
cessful. The  fact  that  the  patient  knows  that 
the  one  prescribing  for  him  is  not  a  qualified 
physician  does  not  affect  the  rule  as  to  the  liabil- 
ity of  the  latter ;  and  even  where  the  practitioner 
possesses  all  educational  qualifications  necessary 
to  entitle  him  to  practice  medicine,  and  has  nmde 
his  application  to  a  legally  constitute<l  board  for 
a  certificate,  still  is  he  chargeable  with  a  viola- 
tion of  the  law  if  he  attempt  to  practice  before 
such  certificate  has  been  actually  granted  to  him, 
and  he  would  be  unable  to  recover  pay  for  ser- 
vices so  rendered. 


110  LEGAL    LIMITS. 

A  pharmacist  is  not  permitted,  as  the  owner, 
the  assignee  of  the  owner,  or  the  vendor  of  a 
patent  medicine,  to  inform  himself  as  to  the 
symptoms  of  a  disease  and  prescribe  liis  medi- 
cine as  a  remedy.  It  has  been  repeatedly  held 
that  such  a  method  of  selling  a  patented  prepa- 
ration constitutes  illegal  practice  of  medicine, 
and  that  a  i)erson  pursuing  such  a  course  is  not 
protected  by  the  provisions  of  a  United  States 
patent.  On  the  other  hand  a  vendor  of  a  patent 
medicine  who  does  not  pretend  to  diagnose  dis- 
ease and  determine  the  proper  remedy  in  a  par- 
ticular case  is  not  a  violator  of  these  statutes. 

The  rule  is  well  established  that  in  all  cases 
of  illegal  practice  of  medicine,  the  person  thus 
violating  the  law,  whether  it  be  so  expressed  in 
the  statute  or  not,  is  not  only  incapable  of  recov- 
ering for  his  services,  but  is  thereby  deprived  of 
the  right  to  recover  pay  for  medicines  so  fur- 
nished by  him.  Thus,  a  pharmacist  who  yields  to 
the  temptation  to  increase  his  sales  by  such  il- 
legal means,  may  be  made  to  suffer  the  loss  of 
his  drugs  together  with  the  legitimate  labor  of 
com  pounding  them. 

In  the  case  entitled  Underwood  v.  Scott,  the 
"practice  of  medicine"  is  defined  by  the  court  as 
constituting  "First,  in  judging  the  nature,  char- 
acter and  symptoms  of  the  disease;  second,  in 
determining  the  proper  remedy  for  the  disease; 
third,  in  giving  or  ])rescribing  the  a])plicati<)n  of 


PHARMACAI.    lURISPRUDEXCE.  Ill 

the  remedy  to  the  disease."  From  this  defluition 
Avith  the  context  of  the  opinion  and  tl»e  rnles  laid 
down  in  other  cases,  it  seems  that  the  otfense  of 
illeual  practicing-  may  be  complete,  although  no 
charge,  other  than  that  for  the  medicines  fur- 
nished, appears  to  have  been  made. 

These  rules  of  the  law,  restricting  the  practice 
of  medicine,  are  not  intended  to  apply  to  any  mere 
neighborly  act  of  kindness  in  case  of  sickness, 
where,  without  any  compensation,  one  person 
may  endeavor  to  contribute  to  the  relief  of  an- 
other in  distress;  nor  are  they  to  be  construed 
as  applicable  to  real  cases  of  "emergency."  What 
constitutes  a  real  case  of  "'emergency"  is  some- 
times a  very  important  question  in  the  course  of 
an  action  at  law,  and  we  find  in  the  opinion  of 
the  ccmrt  delivered  in  "The  People  v.  Lee  Wah," 
that  to  c(mstitute  an  "emergency,"  in  a  legal 
sense,  the  exigency  must  be  of  so  pressing  a 
character  that  some  land  of  action  must  be  taken 
before  a  legally  qualitied  physician  or  surgeon 
can  be  found  or  procured. 

In  addition  to  the  penalty  resulting  from  a 
conviction  for  a  misdemeanor  and  the  loss  of  the 
price  of  his  services  and  medicines,  there  j'et  re- 
mains a  danger  of  a  graver  kind  to  threaten 
the  pharmacist  who  yields  to  the  temi^tation  to 
exceed  the  legal  limits  of  his  profession  and  in- 
crease his  income  by  the  unauthorized  practice  of 
medicine.     A  (|ualitied  ])liysician  may  err  in  his 


112  LEGAL    LIMITS. 

judgmeut  in  the  treatment  of  a  ease  and  serious 
consequences  may  result  to  the  patient;  but,  if 
the  physician  has  not  been  guilty  of  negligence, 
gross  ignorance,  or  other  malpractice,  he  need 
fear  nothing  from  either  criminal  prosecution  or 
civil  action.  But  the  case  would  be  widely  dif- 
ferent with  the  pharmacist,  not  qualified  to  prac- 
tice medicine,  were  he  to  make  such  a  mistake 
with  serious  or  fatal  results.  He  would  be  com- 
pelled to  bear  the  full  weight  of  the  damages  and 
the  i^enalty,  in  proportion  to  the  gravity  of  the 
consequences  resulting  from  his  act.  If  the  pa- 
tient died  as  the  result  of  such  unwarranted  in- 
terference with  a  profession  for  which  the  of- 
fender was  not  legally  qualified,  the  latter  would 
be  subject  to  conviction  for  involuntary  man- 
slaughter. Nor  Avould  the  punishment  following 
such  a  conviction  relieve  him  from  civil  liability 
for  damages  to  those  aggrieved  or  injured  by  the 
death  of  the  victim. 

The  several  State  legislatures  have  enacted 
some  stringent  and  salutary  rules  of  penal  or 
criminal  kind,  intended  to  prohibit  the  manu- 
facture, sale,  use,  mailing,  administering,  or  in 
any  way  supplying  any  medicine,  drug,  other 
substance,  or  instrument  for  improper  or  crim- 
inal purposes.  Such  statutes  are  directed  chiefly 
against  miscarriage,  abortion,  rape,  etc.,  which 
crimes  are  classed  as  felonies  and  punishable 
by  imprisonment  for  a  term  of  years.     Statutory 


PHARMACAI.    lUKISl'Kl'DKNCE.  113 

rules  exist  likewise  aiiaiiist  tli(^  juliilleral  ioii  of 
(Iniiis,  and  ai;aiiist  the  willful,  negligent,  or  iii- 
noraiit  omission  to  label  any  drug-  or  medicine 
])nt  u])  in  filling  an  order  or  prescription.  These 
latter  offenses  are  classed  as  misdemeanors,  bnt 
if  death  should  occur  by  one  of  them  it  would  be 
a  felony. 

Now,  in  connection  with  these  penal  provisions, 
it  is  of  special  importance  to  note  the  tendency 
of  modern  rules  of  law  to  class  as  "principals" 
all  persons  directly  or  indirectly  concerned  in 
the  commission  of  a  crime.  A  "principal,"  in 
criminal  law,  is  said  to  be  "the  actor  in  the  com- 
mission of  a  crime  ;"-^  an  "accessory  "  is  one  "who 
is  not  the  chief  actor  in  an  offense,  nor  present 
at  its  performance,  but  is  in  some  way  concerned 
therein,  either  before  or  after  the  fact  com- 
mitted."^ The  old  distinction  of  the  common 
law  between  principals  of  the  first  degree  and 
principals  of  the  secon<l  degree,  and  accessories 
before  the  fact,  is  fading  from  the  statute 
books.  The  prevailing  theory  of  the  law 
is  now  that  "All  persons  concerned  in  the  com- 
mission of  a  crime,  whether  it  be  felony  or  mis- 
demeanor, and  whether  they  directly  commit  tlie 
act  constituting  the  offense,  or  aid  and  abet  in 
its  commission,  or,  not  being  present  have  ad- 
vised and   enc(mraged   its   commission,  and   all 

1  Bouv.  Law  Diet. 

2  And.  Law  Diet. 


114  LEGAL    LIMITS. 

persons  counselinii",  advisiiii;-  or  encouraging'  chil- 
dren under  the  age  of  fourteen  years,  lunatics,  or 
idiots,  to  commit  any  crime,  or  who,  by  fraud, 
contrivance,  or  force,  occasion  the  drunlvcnness 
of  another  for  the  purpose  of  causing  him  to  com- 
mit any  crime,  or  who,  by  threats,  menaces,  com- 
mand, or  coercion,  compel  another  to  commit 
any  crime,  are  principals  in  any  crimes  so  com- 
mitted." This  section  of  the  Penal  Code  of  Cali- 
fornia expresses,  we  believe,  the  prevailing  Amer- 
ican theory  of  criminal  liability.^ 

1  Sec.  31  P.  C.  Cal. 


PHARMACAL   JURISPRUDENCE.  115 

CHAPTER    IV. 

The  Common  Law  Kight  to  Puautice  Phar- 
.MACY,  and  the  Reason  fou  Statutory  Re- 
strictions ON  THE  Right. 

Under  the  coiiiiuou  law,  iu  the  United  States 
and  Great  Britain,  anyone  has  the  right  to  prac- 
tice pharmacy.  Tlie  right  to  o\yn  private  prop- 
erty is  fundamental,  and  the  right  to  dispose  of 
it  is  an  incident  of  ()\ynership;  diiigs  are  a 
species  of  property  capable  of  private  ownership, 
and  are  therefore  snbject  to  sale  as  an  incident 
of  such  ownership.  It  is  likewise  incidental  to 
the  ownership  of  private  property,  that  a  man 
may  employ  his  skill  to  change  its  form  and 
increase  its  value,  and  thereafter  exchange  it  for 
the  price  of  the  combined  material  and  labor; 
and  this  represents  the  chief  feature  in  the 
practice  of  pharmacy. 

There  is  nothing''  in  the  nature  of  the  drug 
business  to  except  it  from  the  operation  of  these 
gen(n'al  broad  principles  of  the  commcm  law, 
though  there  is  that  in  the  nature  and  accustomed 
use  of  drugs,  some  of  them  being  dangerous  to 
health  and  life,  which  brings  them  within  the 
operation  of  other  and  well  established  princi- 
ples of  the  common  law,  that  seriously  affect 
the  liability  of  one  who  deals  in  them. 

The  common  law  right  of  every  person  desiring 
to  do  so,  to  engage  in  the  practice  of  pharmacy, 


116  THE    COMMON    LAW    RIGHT. 

being'  based  upon  the  natni-al  or  absolute  rights 
of  personal  liberty  and  private  property,  it  be- 
comes a.  matter  of  interest  to  consider  what 
reasons  may  exist  to  justify  the  making-  of  rules 
to  restrict  that  right,  and  how  far  such  rules  may 
extend  without  amounting  to  an  unjust  infringe- 
ment of  the  rights  referred  to.  A  glance  at 
some  of  the  simpler  conditions  that  alone  can 
insure  to  the  individual  the  reasonable  enjoyment 
of  his  rights,  at  least  while  hunuin  nature  is  in 
its  present  imperfect  state,  may  be  of  some  as- 
sistance to  the  reader.  "The  right  of  personal 
security,  the  right  of  i)ersonal  liberty,  and  the 
right  of  private  property,"  are  held  by  Sir 
AVilliam  Blackstone  to  embrace  the  natural  or 
absolute  rights  to  Avhich  every  man  is  entitled. 
In  a  state  of  nature  a  man  may  be  supposed  to 
enjoy  these  rights  in  an  unlimited  sense;  but 
this  is  true  in  theory  only,  as  his  actual  enjoj^- 
ment  of  any  rights  whatever  in  that  state  is 
rendered  extremely  precarious  by  the  fact  that 
another,  by  superior  strength  or  treachery,  may 
slay,  enslave  or  rob  him. 

The  knowledge  that  he  possessed  the  right  of 
personal  security  could  have  yielded  little  com- 
fort to  the  primitive  man,  while  at  the  same  time 
he  Avas  conscious  of  living  in  the  most  terrifying 
insecurity.  Any  enthusiasm  engendered  by  the 
knowledge  of  possessing  the  right  of  personal 
libertv,  might  have  been  chilled  by  the  limitations 


PHARMACAI.   jrRISrRUnEXCE.  117 

thrown  aroimd  liiiii  by  a  inoiv  powerful  nci^lihoi', 
Avho  also  possessed  the  Y\<x\it  of  personal  lib- 
erty, together  with  the  ])()wer  to  enforce  an 
unrestricted  enjoyment  thereof,  and  was  re- 
strained by  no  regard  for  the  rights  of  others. 
His  right  of  private  property  could  have  afforded 
him  little  consolation,  after  some  enterprising 
and  unscrupulous  person  had  stripped  him  of 
its  possession  and  enjoyment.  Thus  the  absolute 
rights  of  primitive  man  proved  in  many,  perhaps 
most,  instances  but  a  bloody  heritage  of  battle 
Avith  man  and  beast,  in  the  incessant  turmoil  of 
which  he  passed  his  life,  vainly  endeavoring  to 
reduce  those  abstract  rights  to  a  state  of  present 
possession  and  enjoyment. 

Liberty,  deprived  of  hev  ])roper  vestments  of 
law  and  courtesy,  is  but  a  naked  savage  and  often 
better  shunned  than  courted.  The  very  existence 
of  these  absolute  rights  of  man,  together  with  the 
disposition  of  most  men  to  enjoy  them  to  the  full 
extent  of  their  opportunities,  gives  rise  to  the 
necessity  for  rules  of  equitable  justice  and  re- 
straint. AYithout  such  rules,  the  liberty  of  the 
strong  would  mean  the  enslavement  of  the  weak, 
personal  security  would  not  abide  on  earth  and 
the  law  of  private  property  would  be: 

"The  simple  ])lan, 

That  they  should  take  who  have  the  power. 

And  they  should  keep  who  can." 


118  THE    COMMON     LAW    RIGHT. 

Even  in  a  state  of  savaj^erv,  men  quickly  learn 
that  the  best  conditions  of  life  possible  to  them 
are  to  be  attained  onl}^  in  combination  and 
mutual  support ;  and  as  the  result  of  this  knowl- 
edge, out  of  chaos  comes  association,  organiza- 
tion and  government.  The  individual  consents 
to  some  restrictions  upon  his  natural  rights  and 
liberties  that  he  may  be  secure  in  the  enjoyment 
of  those  that  remain  to  him;  and  so  long  as 
tyranny  is  excluded  from  government,  and  the 
restraints  that  are  imposed  upon  individual 
liberty  are  necessary,  and  are  framed  and  en- 
forced in  a  spirit  of  equal  justice,  the  individual 
is  greatly  profited  by  what  is  sometimes  termed 
the  "social  contract." 

Let  us  suppose  that  in  the  wilds  of  Africa  three 
savages  occupy  adjoining  lands  and  live  apart 
from  all  tribal  relations.  One  is  a  burly  fellow 
and  superior,  physically,  to  either  of  his  neigh- 
bors, whom,  singly,  he  unscrupulously  robs  and 
abuses.  Driven  to  the  extremity  of  endurance 
by  their  merciless  tormentor,  the  two  make  com- 
mon cause  against  him  and  find  that,  jointly, 
they  are  his  match.  Upon  this  discovery,  they 
decide  to  build  their  huts  together  and  to  live 
upon  and  cultivate  the  same  patch  of  ground ;  and 
agree  that  in  case  of  an  attack  upon  either,  the 
other  shall  go  to  his  aid.  This  arrangement 
proves  satisfactory  so  far,  and  they  begin  at 
once  to  enjoy  some  liberty  of  action  with  a  feel- 


PHARMAIAL   J  T  K  ISI'RmEXCE.  119 

m^i,  of  security  and  the  pleasure  of  uuuiolested 
proprietorship  in  their  land,  neither  of  which 
had  been  possible  before  while  living-  separately 
at  the  mercy  of  their  violent  neiohbor.  But, 
each  of  the  allies  being-  accustomed  to  following 
the  dictates  of  his  own  will,  solely,  save  when 
deferring  to  outside  force,  they  soon  fall  to  quar- 
reling with  each  other.  They  do  not  dare  to  sep- 
arate aud  live  apart,  for  their  vengeful  enemy 
waits  but  an  op])ortunity  to  destroy  them  singly. 
The  result  is  that  perforce  of  circumstances  they 
are  compelled  to  adjust  their  differences  and 
agree  to  some  personal  sacrifices  for  the  common 
good,  in  order  that  they  may  preserve  life  and 
liberty.  This  agreement  is  their  constitution 
and  tliey  have  learned  their  first  lesson  in  civil 
government.  They  surrendered  some  of  their 
lesser  riglits  and  privileges  in  order  that  they 
might  live  in  security,  exercise  their  greater 
liberties,  and  enjoy  their  property. 

The  illustration  here  used  is  a  passage  from 
the  vei'y  primer  of  the  science  of  government, 
but  however  great  and  complex  a  j)olitical  or- 
ganization nuiy  become,  the  simple  principles 
of  mutual  protection  and  advantage  underlie  the 
whole  fabric,  and  every  just  and  necessary  law 
that  is  nuule  takes  its  vital  force,  directly  or 
indirectly,  from  then). 

It  is  generally  true  that  the  state  will  i)ermit  a 
person  to  select  and  pursue  au  occupation  with- 


120  THE    COMMON    LAW    RIGHT.  / 

out  legal  iuterfereiKL'  or*  restraint;  providiyl, 
always,  tbat  lie  must  uot  undertake  to  follow  any 
vocation  that  will  be  a  menace  to  the  public 
health  or  safety,  or  that  is  opposed  to  the  policy 
of  the  government.  The  rule,  "salus  populi 
f^iiprema  Ici-/^  is  as  strong  now  as  it  was  in  the 
days  of  the  Roman  Republic,  and  public  health, 
safety  and  policy  are  each  paramount  to  the 
choice  of  the  individual.  Upon  this  principle 
rests  the  ''police  power"  of  a  community  and  its 
exercise  "w'ith  respect  to  the  liberty,  safety, 
health,  morals,  tranquility,  and  happiness  en- 
joyed by  its  members."^  Justice  Field  defined 
"police  power"  as  being:  ''The  power  in  each 
State  to  prescribe  regiilations  to  promote  the 
health,  peace,  morals,  education,  and  good  order 
of  the  people."^  The  same  great  jurist,  in  in- 
dicating the  constitutional  boundaries  wdiich 
limit  the  exercise  of  their  police  pow'er  by  the 
several  States  of  the  Union,  said :  "Legislation 
which  secures  to  all  protection  in  their  rights, 
and  the  eqwal  use  and  enjoyment  of  their  prop- 
erty, embraces  an  almost  infinite  variety  of  sub- 
jects. Whatever  affects  the  peace,  good  order, 
morals,  and  health  of  the  community,  comes 
within  its  scope;  and  every  one  must  use  his 
property  subject  to  the  restrictions  wdiich  such 
legislation   imposes.     The  police   power  of  the 

1  And.  Diet,  of  Law. 

2  Barbier  v.  Connolly.     11:5  U.  S.  ;n,  5  .Sup.  Ct.  Rep.  357,  28 
L.  Ed.  923,  10  U.  S.    Notes  947. 


PHARMACAL    JURISPRUDENCE.  121 

State  eau  only  interfere  with  the  eoudiu-t  of  in- 
dividuals in  their  intercourse  with  eaeh  other, 
and  in  the  use  of  their  property,  as  far  as  may  be 
reijuived  to  secure  these  objects."' 

Laws  of  the  chiss  un<UM'  consideration,  rei'U- 
hitino  and  restrict  ini>-  the  practice  of  certain  oc- 
cupatioiis  and  professions,  are  established  and 
maintained  in  various  forms  in  most  civilized 
countries.  Though  appearing-  only  in  the  higher 
stages  of  civilization  and  regarded  as  the  out- 
growth of  an  artificial  state  of  society,  they  are, 
nevertheless,  founded  upon  the  natural  and  prim- 
itive right  of  personal  security.  Their  presence 
is  a  manifestation  of  the  efficient  power  of  united 
mankind,  exerted  for  the  security  of  each  indi- 
vidual, by  sacriticiug  the  immediate  and  selfish 
interests  of  a  few  to  the  permanent  and  substan- 
tial interests  of  all. 

The  legislative  idea  of  public  good  is  truer  than 
that  of  the  individual  to  the  extent  that  private 
interests  are  eliminated  therefrom.  The  average 
citizen  would  promote  the  general  welfare  by 
cheerfully  restricting  the  private  enterprises  of 
his  neighbor,  wherever  they  might  seem  to  be 
detrimental  to  the  public  good ;  but  would  be  slow 
to  impose  a  check  upon  his  own  prosperity  in 
pursuance  of  the  same  beneficent  principle.  In 
a  legislative  body,  a  majority  may  generally  be 


1  Munn  V.    Illinois.       '.)-l   L'.   S.   145,    24  L.   Ed.   77,   S)  U.  S 
Notes  21 


122  THE    COMMON    LAW    RIGHT. 

found  wlio  are  Avilliii<>'  to  work  for  wliat  seems  to 
them  to  be  the  highest  g'ood  of  the  people ;  for  it 
is  not  an  easy  matter  to  coerce  or  induce  so  con- 
siderable a  number  of  men  to  act  in  unison  for 
the  furtherance  of  the  merely  selfish  ends  of  any 
one  person  or  company  of  persons. 

It  is  doubtless  true,  however,  that  the  origin 
of  very  few  statutes  can  be  traced  to  purely  dis- 
interested sources.  The  subjects  which  engage 
the  attention  of  legislatures  are  agitated  primar- 
ily, as  a  rule,  either  by  those  whose  sole  purpose 
is  to  use  this  department  of  government  to  ad- 
vance their  private  interests  or  by  those  who  are 
moved  to  active  exertion  in  a  nuitter,  by  the  ex- 
pectation of  incidentally  deriving  some  material 
personal  advantage  from  the  passage  of  the  act 
desired.  From  the  many  subjects  thus  proposed 
for  legislation,  it  remains  for  the  legislators  to 
determine  which  of  them,  if  any,  involve  the  real 
interests  of  the  people  in  such  a  way  as  to  require 
the  making  of  additional  law  s. 

The  passage  of  laws  restricting  and  regulating 
the  practice  of  a  particular  profession,  like  phar- 
macy, medicine,  or  dentistry,  is  generally  urged 
by  the  members  of  the  profession,  themselves, 
with  the  laudable  purpose  of  raising  its  standard 
of  proficiency,  and  j^lacing  it  upon  a  higher  and 
more  exclusive  plane  of  operation;  their  chief 
aim  being  to  promote  the  growth  and  dignity  of 
their  profession,  and  incidentally  to  share  in  the 


PHARMACAL    JURISPRUDENXE.  123 

general  prosperity  resulting  therefrom.  But 
wlieu  the  subject  has  oiu-e  beeu  brought  to  the 
attention  of  the  legislators,  it  is  viewed  and  dis- 
cussed from  a  stan(l])oint  widely  removed  from 
that  occupied  by  the  nuMubers  of  the  profession. 
AVith  the  latter,  the  advancement  of  their 
profession  is  the  central  and  moving  thought, 
and  the  good  of  the  public  follows  as  a  resulting 
benetit;  while  with  the  former,  the  public  good 
must  be  the  controlling  consideration,  to  which 
the  benetit  conferred  upon  the  particular  pro- 
fession is  incidental. 

Tried  by  the  rule  just  stated,  laws  restricting 
and  regulating  the  practice  of  pharmacy  have 
generally  met  with  favor,  both  from  legislators 
and  from  the  public  at  large,  for  the  reason  that 
such  laws  are  founded  upon  principles  of  sound 
policy  and  are  directed  to  the  substantial  good 
of  the  people.  As  before  intimated,  laws  of  this 
nature  are  based  upon  the  principle  of  personal 
security  or  self  preservation ;  and  wherever  a 
vocation,  or  even  a  single  act,  is  of  such  a  nature 
as  to  be  attended  with  conditions  of  peculiar  or 
unusual  risk  or  danger  to  the  health,  reputation 
or  life  of  one  liable  to  be  affected  by  it,  a  person 
engaged  in  the  vocation  or  doing  the  act  is  held 
to  a  responsibility,  strict  in  proportion  to  the  risk 
or  danger.  Such  has  ever  been  the  policy  of  the 
unwritten  or  common  law,  and  at  various  times 
statutes  have  befni  enacted  in  aid  of  that  ]>olicy; 


124  THE    COMMON    LAW    RIGHT. 

but  it  remained  for  modern  jurisprudence  to 
adopt  measure>s  which  operate  in  the  interests  o/ 
scientific  proficiency  A^liile  at  the  same  time  tend- 
ing, by  preventive  means,  to  reduce  tlie  danger. 
The  wisdom  of  the  method  is,  we  think,  beyond 
question  in  an  enlightened  age,  and  to  maintain 
law^s  of  this  nature  is  a  public  duty  of  the  highest 
order;  while  the  omission  to  provide  for  the  pro- 
tection of  the  community  against  dangers  so  ap- 
parent, in  a  dull  reliance  upon  common  law  rem- 
edies for  irremediable  injuries,  invites  a  charge 
of  criminal  negligence  or  imbecility. 

No  matter  wdth  what  degree  of  strictness  the 
common  law  rules  of  liability  may  be  applied  to 
him  who  deals  in  substances  of  a  dangerous  na- 
ture, these  rules  should  be  relied  upon  only  after 
every  means  has  been  used  to  prevent  any  occa- 
sion for  invoking  them.  There  are  some  things 
for  Avhich  damages  are  totally  inadequate  as  a 
remedy,  and  there  are  cases  in  which  even  that 
insufficient  remedy  cannot  be  obtained  owning  to 
the  poverty  of  the  offender.  The  true  policy  of 
the  law  is  to  reduce  to  a  minimum  the  opportuni- 
ties for  the  dangerous  and  deadly  mistakes  to 
which  a  profession  like  pharmacy  is  peculiarly 
exposed,  and  wdiich  menace  the  security  of  those 
who  are  obliged  to  trust  their  health  and  even 
their  lives  to  the  knowdedge  and  skill  of  its  mem- 
bers. 


PHARMACAL   JURISPRUDENCE.  125 

Of  coui'se,  a  law  that  specitically  restricts  the 
practice  of  a  particuhir  profession  to  those  avIio 
possess  a  certain  standard  of  educational  quali- 
fications and  general  fitness,  will  challenge  and 
encounter  the  violent  opposition  of  those  who 
are  incapable  of  meeting  its  requirements;  but 
this  opposition  needs  not  to  be  met  by  argument, 
since  it  bears  in  itself  the  seeds  of  its  own  de- 
struction. When  an  un<iualified,  would-be  prac- 
titioner is  found  expending  his  energies  in  pro- 
testing against  and  trying  to  evade  the  provis- 
ions of  a  law  framed  to  elevate  the  profession 
of  his  choice,  instead  of  proceeding  promptly  to 
put  himself  in  harmony  with  so  commendable 
and  progressive  a  movement,  he  evinces  a  fatal 
want  of  either  capacity  or  honest  purj^ose  to  give 
to  society  the  best  professional  services  of  which 
he  is  capable.  In  fact,  he  is  the  very  man 
against  whom  the  law  is  designed  to  protect  tlie 
community. 

We  may  say  in  concluding  this  chapter  and  us 
a  summary  of  its  contents,  that  from  a  study  of 
the  common  law,  it  appears  that  under  its  prin- 
ciples any  i^erson  is  at  liberty  to  engage  in  the 
sale  of  drugs  as  freely  as  in  any  other  brancli  of 
the  mercantile  business;  and  that  he  maj'  even 
pursue  the  practice  of  i^harmacy  in  its  more  tech- 
nical application  to  the  dispensing  of  medicines, 
etc.,  with  the  same  freedom  as  that  with  which  he 
might  engage  in  any  other  lawful  occupation. 


126  THE    COMMON    LAW    RIGHT. 

But  it  seems  also,  that  owiiij^  to  the  daii<ieroiis 
character  of  many  drugs  in  their  relation  to  the 
health  and  lives  of  those  who  may  use  them,  the 
dealer,  whether  as  merchant  or  pharmacist,  bears 
a  weight  of  legal  responsibility,  great  in  a  degree 
corresponding  to  the  danger  involved. 

It  appears  that  the  statutory  provisions  for 
restricting  and  regulating  the  practice  of  phar- 
macy are  based  upon  the  principles  of  personal 
security  or  self  preservation;  that  the  immedi- 
ate reasons  for  applying  the  principles  in  this 
case  are,  that  the  practice  of  this  profession  in- 
volves the  selling  and  compounding  of  substances 
dangerous  to  the  health  and  lives  of  citizens ;  that 
from  the  unfamiliar  character  of  those  sub- 
stances, the  buyer  is  unable  to  judge  of  their  na- 
ture or  quality,  and  obliged  to  trust  entirely  to 
the  knowledge,  skill,  and  care  of  the  pharmacist; 
that  public  health  and  safety  require  that  the 
latter  shall  attain  to  a  certain  proper  degree  of 
education  and  training  to  fit  him  for  his  respon- 
sible duties;  that  the  remedies  afforded  by  the 
common  law  for  injuries  occasioned  by  ignor- 
ance, unskilfulness  or  neglect  on  the  part  of  a 
pharmacist,  are  wholly  inadequate;  and  that 
these  statutory  provisions  are  adapted  to  reduce 
to  a  minimum  the  dangers  referred  to  herein,  and 
to  insure  a  high  degree  of  excellence  in  a  pro- 
fession second  only  to  medicine  in  its  influence 
upon  the  health  and  lives  of  the  people.     Yet, 


PHARMACAI,    jlRISPRrDENCE.  127 

with  so  stroiiii'  ;ni  array  of  reasons  for  the  iiiaiii- 
teuanre  and  further  (leveh)pment  of  these  meas- 
ures, it  is  none  the  less  to  be  remembered  tliat  the 
State  may  "interfere  Avitli  the  conduct  of  indi- 
viduals in  their  intercourse  with  each  other,  and 
in  the  use  of  their  j^roperty,"  only  so  far  as  may 
be  required  to  secure  "the  peace,  j>ood  order, 
morals  and  health  of  the  community."  The  del- 
icate balance  between  personal  security  and  per- 
sonal liberty  must  be  wisely  adjusted  and  firmly 
maintained. 


128  QUALIFICATIONS    AND    REGULATIONS. 

CHAPTER  Y. 

qualip^ications  of  pharmacist  and  statutory 
Regulations. 

When  we  speak  of  the  qualifications  of  the 
pharmacist  in  this  connection,  we  mean  those 
which  the  law  requires  him  to  possess.  A  man 
who  "holds  himself  out  to  the  community"  as 
being  fitted  to  do  certain  things  that  require 
scientific  knowledge  and  skill,  with  a  fair  degree 
of  care  and  judgment,  and  offers  his  services  to 
that  end,  assumes  certain  obligations  that  the 
law  will  hold  him  responsible  for.  Every  mem- 
ber of  the  community  who  avails  himself  of  the 
services  of  such  a  man,  is  entitled  to  expect  from 
him  that  he  Avill  exercise  on  his  behalf  a  reason- 
able or  ordinary  degree  of  such  knowledge,  skill, 
care  and  judgment. 

The  general  principle  here  stated  has  special 
significance  when  applied  to  a  profession  like 
pharmacy,  which  so  closely  concerns  the  lives 
and  health  of  the  people.  Moreover,  the  average 
citizen  would  be  (piite  helpless  in  the  matter  of 
determining  the  kind  or  quality  of  a  drug  liought 
by  him  or  used  in  a  prescription  compounded  by 
him.  He  is  simply  at  the  mercy  of  the  pharma- 
cist; and  the  law  gives  him  the  right  to  rely  ab- 
soluteh'  upon  the  skill  and  judgment  of  the  man 
who  sells  him  the  drug  or  prepares  the  prescrip- 
tion.    For  this  reason  it  is  judicially  established 


PHARMACAI.    JURISPRUDENCE.  129 

concerninji  the  pliarnuu-ist,  that  "It  is  his  duty 
to  know  the  properties  of  his  (Inii^s,  and  lo  be 
able  to  distiugnish  them  from  eaeh  other.  It  is 
his  duty  so  to  qualify  himself  to  attend  to  the 
business  of  compounding  and  vending  medicines 
and  drugs,  as  that  one  drug  may  not  be  sold  for 
another ;  and  so  that  when  a  prescription  is  pre- 
sented to  be  made  up,  the  proper  medicines,  and 
none  other,  be  used  in  mixing  and  compounding 
it." 

Not  only  must  he  who  chooses  this  profession 
qualify  himself  thoroughly  for  the  discharge  of 
its  responsible  duties,  before  entering  upon  its 
practice,  but  he  must  maintain  himself  abreast 
of  the  times  in  all  that  pertains  to  pharmaceuti- 
cal knowledge  as  applied  in  modern  practice.  In 
all  legal  issues — contests  growing  out  of  charges 
of  negligence,  unskilfulness,  or  other  malprac- 
tice— that  may  arise  in  the  pharmacist's  career, 
he  will  be  judged  by- the  authorities  and  stan- 
dards of  his  profession. 

The  law  does  not  require  the  pharmacist  to 
possess  a  degree  of  knowledge  and  skill  equal  to 
that  of  the  most  advanced  members  of  his  voca- 
tion, but  is  inexorable  in  its  demand  that  he  shall 
have  and  use  in  his  practice  at  least  ordinary 
knowledge  and  skill. 

The  principle  here  stated  is  of  the  general  law 
and  entirely  independent  of  all  statutory  provis- 
ions.    The  fact  that  a  man  holds  a  license  to 


130  QUALIFICATIONS    AND    REGULATIONS. 

practice  pharmacy  under  the  statute,  iu  a  state 
where  the  practice  of  pharmacy  is  reguhited  by 
statute,  does  uot  iu  auy  sense  exempt  him  from 
the  force  and  effect  of  this  general,  fundamental 
principle  as  to  his  qualifications.  Neither  act- 
ual ignorance  nor  negligence  may  shield  itself 
behind  the  theoretical  ])roticiency  suggested  by 
a  license. 

In  most  of  the  states  of  the  Union  statutes  haye 
beeu  enacted  to  regulate  the  practice  of  phar- 
macy. Of  course  these  la^ys  are  of  force  only 
\yithin  the  boundaries  or  jurisdiction  of  the  par- 
ticular state  that  passes  them,  and  pharmacists 
and  la^yyers  must  ac<iuaint  themselyes  Ayith  the 
statutory  provisions  on  this  subject  of  their  OAyn 
states  respectively. 

Such  statutes  generally  provide,  in  effect,  that 
'"it  shall  be  unlawful  for  any  person  to  manufac- 
ture, compound,  sell,  or  dispense  any  drug,  poi- 
son, medicine  or  chemical  for  medicinal  use,  or  to 
dispense  or  compound  any  prescription  of  a  med- 
ical practitioner  unless  such  person  be  a  regis- 
tered pharmacist  or  a  registered  assistant  phar- 
macist, etc."^  They  then  proceed  to  define  "reg- 
istered pharmacist"  and  "registered  assistant 
pharmacist"  and  to  fix  the  legal  status  of  each, 
relative  to  the  profession.  Their  fitness  or  qual- 
ifications, from  a  theoretical  point  of  view,  being 
determined  either  upon  actual  examination   or 

1  Statutes  of  California,  1901,  P.  299.     State   v.    Workman, 
75  Mo.  App.  454. 


PHARMACAI.    JURISPRrnENCF..  131 

the  presentation  of  satislactory  cirdcnlijils ;  but 
a  certain  number  of  years  of  actual  experience  in 
drug-  stores  where  the  prescriptions  of  plivsiciaus 
are  prepared  is  made  tlie  sine  qua  non  in  the 
qnalilications  of  both  registered  pliarnmcist  and 
registered  assistant  pharmacist. 

Provision  is  made  for  the  a])i)ointment  of  a 
Board  or  Commission  of  IMiarmacy,  with  power 
to  transact  all  business  pertaining  to  the  legal 
regulations  of  the  practice  of  pharmacy;  to  cause 
the  prosecntion  of  any  who  violate  these  laws, 
and  to  examine  and  register  as  pharmacists  or 
assistant  pharmacists  all  applicants  Avhom  it 
shall  deem  qnalified  to  be  such,  respectively. 

All  applicants  for  examination  or  registration 
are  required  to  pay  a  certain  fee  to  the  secretary, 
who,  in  turn,  must  furnish  with  a  certificate, 
signed  by  the  secretary  and  by  the  examiners, 
each  one  who  passes  the  examination. 

A  book  is  kept  in  which  are  registered  all  phar- 
macists and  assistant  pharmacists  who  are 
deemed  qualified  to  practice  under  the  statute. 

These  statutes  embrace  stringent  rules  against 
the  substitution,  adulteration,  or  deterioration 
or  alteration  in  any  numner  of  any  drug,  or  the 
selling  of  any  drug  when  so  deteriorated  or  al- 
tered. They  require  the  pharmacist  to  file  all 
physicians'  prescriptions  and  to  keej*  them  so 
filed  for  a  specified  time;  also,  to  furnish  a  co])y 
thereof  at  the  order  of  the  ])r('S(ribing  physician. 


132  QI'ALIFICATIONS    AND    REGULATIONS. 

This  rule  as  to  prescriptions  serves  an  important 
pni'pose  in  providing  a  record  to  aid  in  fixing  the 
responsibility  for  mistakes.  It  is  an  invaluable 
protection  to  the  pharmacist,  in  any  case  where 
he  nmy  be  charged  with  a  mistake  for  which  some 
physician  may  really  be  responsible. 

Not  less  stringent  are  the  rules  provided  to 
govern  the  sale  of  all  poisonous  drugs.  All  such 
are  to  be  labeled  with  the  name  of  the  article  and 
the  Avord  "poison,"  and  the  name  and  place  of 
business  of  the  seller.  In  the  case  of  some  of 
these  drngs,  specified  in  a  certain  schedule,  every 
sale  must  be  entered  in  a  book  kept  for  that  pur- 
pose ;  the  entry  giving  the  date  of  sale,  the  name 
and  address  of  the  purchaser,  the  name  and  quan- 
tity of  the  poison  sold,  the  purpose  for  which  it 
is  stated  by  the  purchaser  to  be  required,  and 
the  name  of  the  dispenser.  It  is  made  unlawful 
for  a  druggist  to  sell  any  poison  listed  under  the 
statute,  unless  on  inquiry  it  is  found  that  the  per- 
son is  aware  of  its  j^oisonous  character,  and  that 
it  is  to  be  used  for  a  legitimate  purpose.  Rea- 
sonable exceptions  are  made  to  these  rules,  in 
cases  of  physicians'  prescriptions,  and  where  the 
])ackage  sold  does  not  contain  more  than  an 
ordinary  dose. 

These  wise  limitations  on  the  sale  of  poisonous 
drugs  ha\-e  a  tendency  to  reduce  mistakes  and 
accidents  to  the  minimum;  and  to  serve  as  at 
least  some  slight  check  upon  crime,  while  mater- 


PHARMACAI.    JURISPRUDENCE.  133 

ially  aidiiio-  iu  fixing  the  responsibility  for  mis- 
takes, and  in  detecting  some  of  tlie  mistakes 
which  they  cannot  prevent. 

The  violation  of  any  provision  of  these  statutes 
is  made  a  misdemeanor,  punishable  by  fine  and 
imprisonment. 

Since  the  courts  are  gradually  developing  a 
body  of  pharmacal  law  iu  their  decisions  undei* 
these  several  statutes,  it  will  be  useful  to  here 
note  the  present  trend  of  judicial  action  along 
these  lines,  by  referring  to  a  few  instances.  In 
New  York,  the  provision  of  the  public  health  law, 
prohibiting  the  practice  of  pharmacy  without  a 
license,  does  not  apply  to  the  sale  of  the  usual 
domestic  remedies  by  retail  dealers  in  the  ''rural 
districts."  The  statute  provides  an  exception  in 
favor  of  these  "usual  domestic  remedies."  In  the 
interpretation  of  this  exception,  the  court  liekl 
that  it  does  not  protect  an  unlicensed  dealer  iu 
a  village  of  12,000  inhabitants;  "rural  districts" 
being  defined  by  the  statute  to  mean  "small  vil- 
lages and  country  districts  having  no  store  where 
pharmacy  is  practiced."  Westchester  County 
V.  Dressner,  48  N.  Y.  Supp.  953,  23  App.  Div.  215. 

Under  the  Illinois  statute,  permitting  the  sale 
of  "domestic  remedies"  without  license,  the  ques- 
tion whether  iodine  and  quinine  are  sucli  rem- 
edies was  held  to  be  for  the  jury.  Pcoj^lc  v. 
Fisher,  83  111.  App.  114. 


134  QUALIFICATIONS    AND    REGULATIONS. 

Where  one  lias  been  sued  for  compounding  a 
prescription,  lie  not  having  a  license  to  practice 
pharmacy,  and  alleges  in  his  defense  that  he  is  a 
legally  qualified  physician,  the  burden  of  proving 
the  allegation  rests  upon  him.  Suffolk  Co.  v. 
Shaw,  47  N.  Y.  Supp.  349,  21  App.  14G. 

The  provision  of  the  statute  requiring  the 
pharmacist  to  label  the  poisons  sold  or  dispensed 
by  him  does  not  apply  to  the  prescriptions  of  phy- 
sicians.    Wise  V.  Morgan,  45  S.  W.  971. 

Where  the  law  reipiires  that  every  pharmacy 
shall  be  in  charge  of  a  legally  (pialified  pliarma- 
cist,  the  provision  is  not  satisfied  by  showing  that 
the  owner  employs  such  a  pharmacist,  when  it 
appears  that  the  latter  resides  at  another  town 
and  is  present  at  the  store  only  two  or  three 
times  a  week.     State  v.  Jorilan,  87  ^lo.  App.  420. 

The  sale  of  intoxicating  liipiors  by  the  drug- 
gist is  a  matter  to  which  the  attention  of  the 
courts  has  been  frecpiently  called.  It  has  been 
held  that  to  protect  a  druggist  in  selling  intox- 
icating liquors,  the  prescri])tion  must  be  pre- 
served as  the  statute  prescribes.  State  v.  Davis, 
7(1  ;Mo.  App.  586. 

Under  Kev.  St.,  C.  28,  par.  5,  authoriziug  drug- 
gists to  keep  all  medicines  and  poisons  author- 
ized by  tlie  T^  S.  dispensary  as  of  recognized 
medicinal  utility,  intoxicating  liquors  are  in- 
cluded. Pollard  V.  Allen,  9(;  Me.  455,  52  Atl. 
924. 

Under  the  statute  ]u-oliibiting  the  selling,  with- 


PHARMACAI,    JURISPRUDENCE.  135 

out  license,  of  iiitoxioatiiiii  liquors,  the  sale  of 
medieiual  pi'ei)a  rat  ions  contaiuiuu  such  a  per- 
centage of  alcohol  that,  if  drunk  to  excess,  it  will 
produce  intoxication,  is  unlawful.  CohNcll  v. 
State,  37  S.  E.  121);  112  (Ja.  7.');  Johnsiui  v.  State, 
(U)  S.  W.  (Tex.  Crini.)  552. 

In  a  district  where  a  special  local  o])tion  law 
is  in  force,  a  drujigist  cannot  obtain  a  license  to 
sell  liquor,  unless  the  law  contains  an  exception 
in  favor  of  druggists.  Easthani  v.  Coumum- 
wealth,  20  Ky.  Law  Kep.  1039,  19  S.  AV.  795; 
(1899)  ;  Storms  v.  Commonwealth,  105  Ky.  019, 
49  S.  W.  451 ;  20  Ky.  Law  Rep.  1434 ;  Common- 
wealth v.  Powell,  02  S.  W.  19;  22  Ky.  Law  Kep. 
1932. 

It  is  also  held  that  where  a  local  option  law  is 
in  force,  a  license  to  sell  "pure  alcohol"  does  not 
protect  a  druggist  in  the  ''sale  of  rye  whiskey." 

It  has  been  decided  that  under  the  law  authoi'- 
izing  the  recover}^  of  a  penalty  for  every  violation 
of  the  act  by  practicing  without  a  licensi^  there 
may  be  a  recovery  of  accumulated  penalties. 
Sutfolk  (\).  V.  Shaw,  47  N.  Y.  Supp.  349,  21  App. 
Div.  140. 

It  is  interesting  to  note  that,  when  one  has 
been  acquitted  in  a  prosecution  for  the  alleged 
violation  of  any  provisions  of  these  acts  regulat- 
ing the  practice  of  pharnuicy,  no  appeal  lies  by 
the  people.  It  comes  under  the  general  i)rovis- 
ion  as  to  criminal  cases.  Peo])le  v.  York  Co.,  SO 
111.  App.  102. 


136  CONSTITUTIONALITY    OF    LAWS. 

CHAPTER  Aa. 

Constitutionality   of  Laws  Regulating  tiii: 
Practice  of  Pharmacy. 

When  the  Thirteen  American  colonies  re- 
nounced their  allegiance  to  Great  Britain  and 
established  their  independence,  the  political 
status  of  each  was  that  of  an  independent,  soa'- 
ereign  state  or  nation,  possessing  legal  capacity 
for  the  exercise  of  the  full  powers  of  sovereignty 
as  of  inherent  right.  Chief  Justice  Black,  in  the 
opinion  delivered  by  him  in  a  leading  Pennsylva- 
nia case,  said  "In  the  beginning  the  people  held 
in  their  own  hands  all  the  power  of  an  absolute 
government.  The  transcendent  powers  of  Par- 
liament devolved  on  them  by  the  revolution; 
(Bonaparte  v.  Camden  etc.  R.  R.  Co.  1  Bald.  220; 
Fed.  Cases  No.  1G17 ;  Johnson  v.  Mcintosh,  8 
Wheat  584;  5  L.  Ed.  681,  2  U.  S.  Notes  201;  Wil- 
kinson V.  Leland,  2  Pet.  G56 ;  7  L.  Ed.  542 ;  2  U.  S. 
Notes  883.)  Antecedent  to  the  adoption  of  the 
federal  constitution,  the  power  of  the  state  was 
supreme  and  unlimited  (Farmers  &  Mechanics 
Bank  vs.  Smith,  3  Serg.  &  R.  08 ;  0  Wheat  131,  5 
L.  Ed.  224,  2  U.  S.  Notes  65. )  If  the  people  of 
Pennsylvania  had  given  all  the  authority  which 
they  themselves  possessed,  to  a  single  person, 
they  would  have  created  a  despotism  as  absolute 
in  its  control  over  life,  liberty,  and  property,  as 
that  of  the  Russian  autocrat.     But  thev  dele- 


PHARMACAL    J  I'KISl'Rl'DKNCK.  137 

jjatecl  a  jxu-lioii  of  it  to  tlie  United  tStulcs,  sjtcc 
ifyiug  what  they  gave,  aud  Avilhhohliiig  <he  rest. 
The  powers  not  given  to  the  government  of  the 
Union  were  bestowed  on  the  government  of  the 
state,  with  certain  limitations  and  excei)ti()Hs, 
expressly  set  down  in  the  state  constitution.  The 
federal  constitution  confers  powers  particularly 
enumerated;  that  of  tlie  state  contains  a  general 
grant  of  all  powers  not  excei)ted.  The  construc- 
tion of  the  former  instrument  is  strict  against 
those  who  claim  under  it;  the  interpretation  of 
the  latter  is  strict  against  those  who  stand  upon 
the  exceptions,  and  liberal  in  favor  of  the  gov- 
ernment itself.  The  federal  government  can  do 
nothing  but  what  is  authorized  expressly  or  by 
clear  implication;  the  state  nuiy  do  whatever 
is  not  prohibited."^  The  principles  so  clearly 
stated  in  this  opinion  are  applicable  with  equal 
force  to  each  aud  every  state  in  the  Union,  and 
present  in  brief  form  the  plan  upon  which  the 
rights  or  powers,  originally  residing  in  the  peo- 
ple, have  been  divided  between  the  three  parties 
to  the  great  compact — the  people,  the  State 
and  the  T^uion. 

First,  for  mutual  protection  au<l  advantage, 
the  thirteen  new  States  entered  into  a  coalition 
based  upon  the  Articles  of  Confederation,  and 
finally,  ui)on  the  present  Constitution  of  the 
United  States,  they  proceeded  "to  form  a  more 

1  Sharpless  v.    Mayor  of  Pliiladelphia,   21    I'a.  St.    H;0-104, 
2  Am.  Law  Reg.  29,  85;  59  Am.  Dec.  759  and  note. 


138  CONSTITUTIONALITY    OF    LAWS. 

perfect  Uuion,"  which  resulted  in  tlie  permanent 
establishing  of  our  present  system  of  govern- 
ment. 

This  "more  perfect  Union,'"  has  now  gone  into 
history  as  a  sovereign  nation,  complete  and  indis- 
soluble, and  the  theory  of  a  confederate  body  of 
independent  states,  as  applicable  thereto,  has 
become  practically  obsolete.  It  must  not  be  for- 
gotten, however,  that  the  sphere  of  sovereignty 
enjoyed  by  the  federal  government  is  limited  by 
what  is  expressed  or  implied  in  the  Constitution, 
and  that  the  Constitution  is  a  grant  of  powers 
from  the  people  of  the  States,  and  "whatever  is 
not  conferred  is  withheld  and  belongs  to  the  sev- 
eral States  or  to  the  people  thereof."^  This 
thought  is  worthy  of  reiteration,  and  should  be 
kept  uppermost  in  the  mind  while  pursuing  an 
inquiry  as  to  the  constitutional  status  of  any 
Congressional  or  legislative  act.  As  indicated 
by  the  cases  herewith  cited,  as  well  as  by  numer- 
ous others  reported,  the  principle  stated  lay  for 
more  than  half  a  century  directly  in  the  line  of 
constitutional  litigation.  It  was  thus  first 
carved  out  by  consummate  judicial  reasoning,  be- 
fore being  finally  placed  beyond  discussion  on 
simple  constitutional  principles,  by  being  incor- 

1  Calder  v.  Bull,  3  Dall.  386;  1  L.  Ed.  648,  1  U.  S.  Notes  57; 
Gibbon  v.  Odgen,  9  Wheat.  1,  187;  6  L.  Ed.  28,  2  U.  S.  Notes 
213;  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257;  9  L.  Ed  709, 
3  U.  S.  Notes  675;  Oilman  v.  Philadelphia,  3  Wall.  713;  18  L. 
Ed.  96,  6  U.  S.  Notes  556;  U.  S.  v.  Cruikshank,  92  U.  S.  542- 
560,  23  L.  Ed.  588,  8  U.  S.  Notes  837. 


PIIARMACAI.    JlRISI-KinENCK.  139 

l)(>rato(l  as  an  aniciuliiu'iit  into  Uw  Constitiilion 
itself.  This  anu^ndiiuMit  dcclaros  that,  "'IMic 
])<)\vers  not  deleuatod  to  the  T^nited  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  resjK'ctively,  or  to  the 
people.^ 

Tt  is  apparent  from  tlie  prineiples  jnst  stated 
that  altlionjih  tlie  laws  of  the  Ignited  States  are 
snprenie,  and  paranionnt  to  the  state  laws,  yet 
it  is  only  upon  certain  subjects,  desii>nated  by 
the  Constitution,  that  the  federal  government 
has  authority  to  make  any  laws  at  all ;  while  each 
state  is  to  be  considered  as  possessing  the  unlim- 
ited rights  or  powers  of  sovereignty,  except  as  to 
those  powers  that  have  been  either  specially  con- 
ferred upon  the  United  States,  or  reserved  by 
the  State  constitution  to  the  people  of  the  State 
themselves.  It  follows  from  these  conditions 
that  ever}'  law  passed  by  a  State  of  the  Union 
must  be  presumed  to-l)e  constitutional  unh'ss  the 
contrary  clearly  appears.  "To  justify  a  cimrt  in 
pronouncing  an  act  unconstitutional,  in  whole 
or  in  part,  it  must  be  able  to  vouch  some  excep- 
tion or  prohibition  clearly  expressed  or  neces- 
sarily implied.  To  doubt  is  to  favor  constitu- 
tionality." "That  meaning  of  words  is  to  be 
taken  wliich  will  support  the  statute."^  Also, 
"A  separate  portion  of  an  act  may  be  unconsti- 

1  Const,  of  U.  S.  Tenth  AnietKl. 

2  Commonwealth  v.  Butler,  <.i!»  I'a.  St.  540;  State  v.  Hipp,  3S 
Ohio  St.  219. 


140  CONSTITUTIONALITY    OF    LAWS. 

tutional,  and  the  rest  be  valid,  provided  tlie  law 
as  a  whole  cau  be  executed."'^  "The  rule  is  to  en- 
force statutes  as  far  as  the}'  are  constitutionally 
made,  rejecting  those  provisions  only  which 
show  an  excess  of  authority,  etc."- 

With  regard  to  the  different  kinds  of  uncon- 
stitutional laws.  Justice  Woodward  said,  "A  law 
that  is  unconstitutional  is  so  because  it  is  either 
an  assumption  of  power  not  legislative  in  its  na- 
ture, or  because  it  is  inconsistent  with  some  pro- 
vision of  the  federal  or  state  constitution."^  The 
legislative  'branch  of  the  government,  whether 
state  or  national,  must  keep  within  its  own 
proper  sphere  of  action  and  must  not  under  any 
circumstances  trench  upon  the  duties  and  powers 
vested  in  the  executive  and  judicial  departments ; 
for  this  would  be  "an  assumption  of  power  not 
legislative." 

Article  VI  of  the  (Constitution  of  the  United 
States  proclaims  that,  "This  Constitution,  and 
the  laws  of  the  Ignited  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  hnv  of 
the  land ;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  Uonstitution  and 

1  United  States  v.  Reese,  92  U.  S.  221,  23  L.  Ed.  563.  8  U.  S. 
Notes  787;  Presser  v.  Illinois,  116  U.  S.  263,  6  Sup.  Ct.  Rep. 
580,  29  L.  Ed.  615,  11  U.  S.  Notes  27. 

2  Adler  v.  Wliitbeck,  44  Ohio  St.  575,  9  N.  E.  672;  Reid  v. 
Morton,  119  111.,  118,  129,  6  N.  E.  414. 

3  Commonwealth  v.  Maxwell,  27  Pa.  St.  456, 


PHARMACAI.     irRISPIU'DENCE.  141 

laws  of  any  State  to  tlie  contrary  iiotwithstaud- 
iui>."  This  is  a  bold  and  nne<jniyoeal  proclama- 
tion of  snprcnuu-y  on  the  part  of  the  Constitu- 
tion. It  associates  with  itself  on  the  plane  of 
supremacy  the  laws  and  the  treaties  of  the 
United  States,  but  in  doing  so,  distinctly  affixes 
a  condition  which  effectually  subjects  them  to 
its  own  soyereignty.  It  is  the  laws  ''made  in  pur- 
suance thereof"  and  the  treaties  "made  under  the 
authority  of  the  United  States"  that  are  a  part 
of  the  supreme  law  of  the  land.  Any  law  not 
made  in  pursuance  of  the  Constitution,  and  any 
treaty  not  made  under  the  authority  conferred 
by  it  upon  the  United  States  would,  of  course,  be 
unconstitutional  and  yoid.^  So  also  would  be 
"anything-  in  the  Constitution  and  laws  of  any 
State  to  the  contrary''  of  this  or  of  any  other 
section  or  proyisi(»n  of  the  Constitution  of  the 
United  States ;  as,  in  fact,  would  be  any  State 
law  if  repugnant  to  any  part  of  the  "Supreme 
Law."  "The  United  States  is  a  goyernment  with 
authority  extending  oyer  the  whole  territory  of 
the  Union,  acting  upon  the  States  and  the  people 
of  the  States.  While  it  is  limited  in  the  num- 
ber of  its  powers,  so  far  as  its  soyereignty  extends 
it  is  supreme.     No  State  goyernment  can  exclude 

1  Ableman  v.  Booth,  21  How.  506-520,  16  L.  Ed.  169,  5  U.  S. 
Notes  885;  United  States  v.  Cruikshank,  92  U.  S.  542,  23  L.  Ed. 
588,  8  U.  S.  Notes  837;  United  States  v.  Harris,  106  U.  S.  629, 
1  Sup.  Ct.  Rep.  609,  27  L.  Ed.  290,  10  U.  S.  Notes  430;  Civil 
Rights  cases,  109  U.  S.  3,  3  Sup.  Ct.  Rep.  18,  27  L.  Ed.  835,  10 
U.  S.  Notes  594. 


142  CONSTITUTIONALITY    OF    LAWS. 

it  from  tlie  exercise  of  any  authority  conferred 
upon  it  by  the  Constitution,  obstruct  its  author- 
ized officers  at»ainst  its  will,  or  withhold  from  it 
for  a  moment  the  cognizance  of  any  subject  whicli 
the  instrument  has  committed  to  it."^ 

In  determining-  the  validity  of  a  law  of  a  given 
State  with  regard  to  the  constitution  of  the  State 
itself,  it  is,  as  we  have  seen,  necessary  to  pro- 
ceed upon  a  theory  different  from  that  adopted 
in  the  case  of  a  United  States'  laAV.  With  regard 
to  the  latter,  assuming  that  the  power  exercised 
is  legislative  in  its  nature,  it  must  be  determined 
whether  that  power  is  embraced  within  those 
conferred  upon  Congress  by  the  Constitution ; 
while  w  ith  the  former,  starting  with  the  same  as- 
sumption, it  must  be  determined  Avhether  the 
power  exercised  has  either  been  conferred  upon 
the  federal  government,  by  the  people,  or  has  been 
prohibited  to  the  legislature  by  the  State  consti- 
tution, and  if  neither  has  been  done  the  law  W'ill 
stand.  This  difference  arises  from  the  fact  that 
State  constitutions,  unlike  that  of  the  United 
States,  are  framed  upon  a  basis  of  unlimited 
power,  and  thereupon  proceed  to  lay  down  cer- 
tain exceptions  which  are  end)raced  in  the  pow- 
ers conferred  upon  the  federal  government  and 
those  reserved  to  the  people  of  the  State. 

Tt  has  been  stated,  in  a  former  chapter,  that 
the  laws  enacted  by  the  several  States  for  regu- 

1  Tennessee  v.  Davis,  100  U.  S.  257,  25  L.  Ed.  048,  9  U.  S- 
Notes  828. 


PHARMACAI.    URISPRrDENCE.  143 

lating  till'  pr;uti('(^  of  pluiniiacY  are  of  the  class 
(lenoiniiiatcd  police  rcniila lions,  and  result  from 
the  exercise  of  what  is  termed  the  police  ])ower 
of  the  State.  In  their  nature,  they  are  identical 
with  the  statutory  rules  framed  to  regulate  the 
practice  of  medicine,  and  dentistry,  respectively, 
and  with  numerous  other  kiAvs  directed  to  the 
preservation  of  the  public  health,  safety,  morals, 
etc.  If,  therefore,  on  principle,  the  laws  appli- 
cable to  the  profession  of  pharmacy  are  unconsti- 
tutional, it  must  follow  that  those  relating  to  the 
two  other  professions  referred  to  are  likewise  so. 
Nor  would  the  matter  end  here,  if  followed  up 
by  a  series  of  uniform  and  consistent  adjudica- 
tions; but  condemnation  would  fall  upon  all  laws 
relating  to  the  public  health  and  morals,  or  as- 
suming to  regulate  such  dangerous  occupations 
as  are  deemed  a  menace  to  public  safety,  until 
the  whole  internal  jDolicj^  of  the  State  would  be 
effectually  wiped  out.  It  is  true,  however,  that 
a  State,  in  the  exercise  of  its  police  power,  may 
interfere  with  the  occupations  and  mutual  deal- 
ings of  its  citizens  only  to  the  extent  necessary 
to  preserve  the  peace,  good  order,  morals  and 
health  of  the  community;  and  many  who  admit 
the  soundness  of  the  general  proposition  that  the 
State  possesses  this  power,  will,  nevertheless, 
oppose  its  exercise  in  some  specific  case,  on  the 
ground  that  the  particular  rule  objected  to  is  be- 
yond the  purview  of  the  principle,  and  infringes 


144  CONSTITUTIONALITY    OF    LAWS. 

upon  the  rights  intended  to  be  reserved  by  the 
people. 

P'rom  the  principles  stated  above,  it  may  be 
said  of  any  State  law  that  it  is  constitutional,  if 
the  power  exercised  in  its  enactment  is  legisla- 
tive in  its  nature,  and  is  not  among  those  con- 
ferred upon  the  federal  government  by  the  Con- 
stitution of  the  United  States,  nor  among  those 
reserved  to  the  people  by  the  State  constitution. 

Dent  V.  West  Virginia  (129  U.  S.  114,  9  Supp. 
Ct.  Rep.  231,  32  L.  Ed.  623,  11  U.  S.  Notes  684) 
is  a  typical  and  leading  case  among  those  which 
have  arisen  out  of  the  laws  under  consideration. 
It  involves  the  validity  of  the  statute  of  West 
Virginia  ''which  requires  every  practitioner  of 
medicine  in  it  to  obtain  a  certificate  from  the 
State  Board  of  Health  that  he  is  a  graduate  of 
a  reputable  Medical  College  in  the  school  of  med- 
icine to  which  he  belongs."'  Although  this  case 
arose  under  the  statute  regiilating  the  practice  of 
medicine,  yet  the  constitutional  questions  raised 
are  exactly  the  same  as  those  which  arise  in  the 
consideration  of  cases  under  the  prevailing  stat- 
utes relating  to  pharmacy. 

In  this  case  it  was  urged  on  behalf  of  the  de- 
fendant physician,  ''that  this  statute  by  forfeit- 
ing his  right  to  continue  in  the  practice  of  his 
profession:  (1)  destroys  his  vested  rights  and 
deprives  him  of  the  estate  he  has  acquired  in  his 
|)rofession  by  years  of  study,  practice,  diligence 


PHARMACAl.    IlKISPRUDKNCE.  145 

and  attt'iilioii :  {'2)  deprivL's  liiin  of  the  beiietit  of 
au  established  reputation  as  a  practitioner:  (3) 
depreciates,  destroys,  and  hence  deprives  him  of 
the  value  of  his  invested  capital  in  books,  medi- 
cines and  instruments."  TTpon  this  showing-  as 
to  loss  of  valuable  property  interests,  counsel 
maintained  that  the  statute  was  repugnant  to  the 
clause  of  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States,  which  declares 
that  no  State  shall  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  laAV. 
Mr.  Justice  Field  presented  the  opinion  of  the 
Court,  in  the  course  of  which  he  said,  "Here  all 
vocations  are  open  to  every  one  on  like  condi- 
tions." "The  interest,  or,  as  it  is  sometimes 
termed,  the  estate  acquired  in  them,  that  is,  the 
right  to  continue  their  prosecution,  is  often  of 
great  value  to  the  possessors,  and  cannot  be  arbi- 
trarily taken  from  them,  any  more  than  their 
real  or  personal  property  can  be  thus  taken.  But 
there  is  no  arbitrary  deprivation  of  such  right 
when  its  exercise  is  not  permitted  because  of  a 
failure  to  comply  with  conditions  imposed  by  the 
State  for  the  protection  of  society.  The  power 
of  the  State  to  provide  for  (lie  general  welfare  of 
the  people  authorizes  it  to  prescribe  all  such  reg- 
ulations as,  in  its  judgment,  will  secure  or  tend 
to  secure  them  against  the  consequences  of  igno- 
rance and  incapacity  as  well  as  of  deception  and 
I'l-aud.     As  one  means  to  this  end  it  has  been  the 


146  CONSTITUTIOXALITV    OK    LAWS. 

practice  of  dift'ereut  States,  from  time  immem- 
orial, to  exact  in  many  pursuits  a  certain  degree 
of  skill  and  learning  upon  which  the  commnnitv 
maj  confidently  rely,  tlieir  possession  being  gen- 
erally ascertained  upon  an  examination  of  par- 
ties by  competent  persons,  or  inferred  from  a 
certificate  to  them  in  the  form  of  a  diploma  or 
license  from  an  institution  established  for  in- 
struction on  the  subject,  scientific  and  otherwise, 
with  which  such  pursuits  have  to  deal.  The  na- 
ture and  extent  of  the  qualifications  required 
must  depend  primarily  upon  the  judgment  of  the 
State  as  to  their  necessity.  If  they  are  appro- 
priate to  the  profession  or  calling,  and  attain- 
able by  reasonable  study  or  application,  no  objec- 
tion to  their  validity  can  be  raised  because  of 
their  stringency  or  difficulty." 

"It  is  sufficient  for  the  purpose  of  this  case,  to 
say  that  legislation  is  not  open  to  the  clmrge  of 
depriving  one  of  liis  rights  without  due  process 
of  law,  if  it  be  general  in  its  operation  upon  the 
subjects  to  which  it  relates,  and  is  enforceable  in 
the  usual  modes  established  in  the  administra- 
tion of  government  with  respect  to  kindred  mat- 
ters; that  is  by  process  or  ]>r()ce(Mliugs  adapted 
to  tlie  nature  of  tlie  case." 

"There  is  nothing  of  jni  arbitrary  cliaracter  in 
the  provisions  of  the  slalule  in  (|ii('sti«>n  ;  it  ap- 
plies to  all  ])liysi(iai!s,  exc(']>t  those  wlio  may  be 
called  foi-  a  si)e('ial  case  from  another  State;  it 


PHAR^^ACAL    JURISPRUDEXCE.  147 

imposes  no  ((mdil  ion  which  cnnnol  ho  H^adily 
mot,  and  it  is  nuuh' cnrorct'.-ihh'  in  I  he  mode  usual 
in  ivindred  mattns,  thai  is,  l»_v  iviinhir  proceed- 
ings adapted  to  the  ease.  It  antlM)i'izes  an  ex- 
amination of  Die  api)lieant  h_v  the  Hoard  of 
Health,  as  to  his  (inalitieatious  Avlieu  lie  lias  no 
evidence  of  them  in  the  diploma  of  a  reputable 
medical  college  in  the  school  of  medicine  to  which 
he  belongs,  or  has  not  practiced  in  the  State  a 
designated  period  before  March,  1887."^ 

These  extracts  from  the  opinion  rendered  in 
Dent  vs.  West  Virginia  possess  the  clearness, 
simplicity,  and  scientific  directness  that  are  wont 
to  characterize  the  expressions  of  the  great  jur- 
ist who  wrote  them;  and  the  principles  therein 
outlined  are  admirably  expressive  of  the  consti- 
tutional status  of  the  laws  under  discussion. 

In  a  Minnesota  case  arising  under  the  statutes 
of  that  State  regulating  the  practice  of  dentistry, 
the  court  declares  that  the  power  of  legislatures 
to  prescribe  reasonable  conditions,  upon  which 
professions  ma}*  be  practiced,  rests  upon  the  right 
to  protect  the  public  from  injurious  consequences 
likely  to  result  from  allowing  persons  to  practice 
those  professions,  who  do  not  ])ossess  (|ualitica- 

1  Dent  V.  West  Virginia  129  U.  S.  114,  9  Sup.  Ct.  Rep.  281, 
32  L.  Ed.  623,  11  U.  S.  Notes  fiS4;  see  also  Eastman  v.  State, 
109  Ind.  278,  08  Am.  Rep.  400,  10  N.  E.  97;  Orr  v.  Meek,  111 
Ind.  40,  11  N.  E.  787;  Broun  v.  People,  11  Colo.  109,  17  Par. 
104;  State  v.  Creditor,  44  Kan.  565,  21  Am.  St.  Rep.  306,  24 
Pac.  346;  Limitations  on  Public  Power,  Tiedman,  Sec.  87; 
Hewitt  V.  Charier,  10  Pick.  353;  Spaulding  v.  Alford,  1  Pick. 
33;  Wright  V.  Linckton,  19  Pick.  288;  Cooly  Const.  Lim.  745. 


14<S  CONSTITUTIONALITY    OF    LAWS. 

tioiis  essential  to  the  safety  of  those  who  employ 
them.  In  rendering  his  opinion,  the  judge  said 
"That,  in  the  exercise  of  that  power,  the  legisla- 
ture may  recpiire,  as  a  coiulition  of  the  right  to 
practice,  that  the  person  shall  procure  a  license; 
umy  designate  some  office  or  board  to  issue  a 
license,  and  to  determine  whether  an  applicant 
possesses  the  qualifications  required  to  entitle 
him  to  it;  and  may  prescribe,  so  far  as  can  be 
done  by  a  general  law,  what  qualifications  shall 
be  required,  and  how  the  possession  of  them  by 
the  applicant  shall  be  ascertained,  necessarily 
follows  from  the  power  itself."^ 

This  Minnesota  case  was  ended  in  the  State 
courts,  and  it  does  not  appear  from  the  opinion 
whether  it  was  contested  on  the  ground  of  re- 
pugnance to  the  constitution  of  the  United  States 
or  on  the  theory  that  the  act  of  the  legislature 
was  an  exercise  of  power  which  had  not  been 
granted  to  the  State  but  was  reserved  to  the  peo- 
ple themselves. 

An  Indiana  case,  decided  in  1887,  reaffirms,  in 
general,  the  doctrine  laid  down  by  Mr.  Justice 
Field  in  Dent  v.  West  Virginia,  and  deals  spec- 
ially with  the  matter  of  exceptions,  occurring  in 
some  States,  to  the  general  operation  of  the  stat- 
utes. To  the  general  provision  requiring  physi- 
cians to  procure  a  license,  etc.,  an  exception  in 
favor  of  those  who  had  practiced  medicine  a  des- 

1  State  V.  Vandersluis,  42  Minn.  129,  43  N.  W.  789,  6  L.  R.  A. 
119. 


PHARMACAL    JURISPRUDENCE.  149 

ijjnated  iiimiber  of  years,  prior  to  the  pa.sjsa<»e  of 
the  act,  was  held  to  be  eoiistitiitional.  The  de- 
fendaut  had  chiinied  that  the  exception  was  a 
grant  of  special  privileges  and  immunities  to  cit- 
izens, and  therefore  repugnant  to  the  Constitu- 
tion. The  language  of  the  court,  upholding  the 
authority  of  the  legislature  to  exercise  its  judg- 
ment in  this  regard,  was  broad  enough  to  include 
the  usual  exceptions  attending  statutes  of  this 
class.  Hence  it  may  be  stated  generally,  that  so 
long  as  these  exceptions  are  not  arbitrary  in  their 
nature,  but,  like  the  statutes  themselves,  operate 
upon  uniform  principles  wholly  consistent  with 
the  purpose  of  the  act,  and  are  applied  alike  to 
all  persons  of  the  class  or  classes  described  in 
them,  they  are  not  to  be  deemed  unconstitu- 
tional.^ 

The  New  Hampshire  case,  entitled  "State  v. 
Forcier"  (65  N.  H.  42,  17  Atl.  577)  was  pros- 
ecuted under  the  4a ws  of  that  State  for  regiilat- 
ing  the  practice  of  pharmacy. 

Justice  Clark  delivered  the  opinion  of  the 
court,  in  the  course  of  Avliich  he  said,  "The  consti- 
tutional authority  of  the  legislature,  in  the  exer- 
cise of  the  police  power  of  the  State  to  enact  such 
regulations  as  are  deemed  reasonably  necessary 

1  State  V.  Donaldson,  41  Minn.  74,  42  N.  W.  781;  State  v. 
Green,  112  Ind.  462,  14  N.  E.  352;  ex  parte  Spinney,  10  Nev. 
:]23;  Fox  V.  Territory,  2  Wash.  Terr.  297,  5  Pac.  603,  5  West 
Coast  Rep.  339;  State  v.  Hathaway,  115  Mo.  36,  21  S.  W.  1081; 
People  V.  Phippin,  70  Mich.  6,  37  N.  W.  888;  Noel  v.  People, 
187  III.  587,  79  Am.  St.  Rep.  238,  58  N.  E.  616. 


150  COXSTITUTIOXALITV    OF    LAWS. 

for  the  seciirit}'  and  proteetiou  of  the  lives  and 
health  of  all  persons  within  the  State,  is  unques- 
tioned.-'^ 

As  to  the  fee  demanded  by  the  Board  of  Com- 
missioners of  Pharmacy  he  said,  "The  fee  of  five 
dollars  to  be  paid  by  the  applicant  for  a  license 
to  engage  in  the  business  of  an  apothecary  and 
druggist,  is  merely  an  equivalent  for  the  seryice 
rendered  by  the  commissioners  in  making  the  ex- 
amination and  issuing  the  license  and  cannot  be 
considered  as  a  tax  upon  the  business,  or  as  de- 
priving the  applicant  of  his  property  without  due 
l)rocess  of  law."- 

In  "State  of  Minnesota  y.  Donaldson,  and  an- 
other," cited  before,  it  was  held  that  the  sale  of 
b()rax,  not  medicinally,  was  not  a  yiolation  of  the 
statute  of  that  State  regulating  the  practice  of 
pharmacy,  and  to  that  end  prohibiting  the  sale 
of  "drugs,  medicines,  or  poisons,"  by  any  other 
than  a  duly  qualified  and  licensed  member  of  the 
profession.  In  this  case  we  find  a  judicial  in- 
terpretation of  the  words  "drugs,  medicines,  and 
poisons,"  as  used  in  the  Minnesota  statute.  In 
the  opinion  of  the  court,  their  meaning  includes 
only  "articles  whose  primary  and  principal  use 

1  State  V.  Donaldson,  41  Minn.  74,  42  N.  VV.  781;  State  v. 
Green,  112  Ind.  462,  14  N.  E.  352;  ex  parte  Spinney,  10  Nev. 
323;  Fox  v.  Territory,  2  Wash.  Terr.  297,  5  Pac.  603,  5  West 
Coast  Rep.  339;  State  v.  Hathaway,  115  IMo.  36,  21  S.  W.  1081; 
People  V.  Phippin,  70  Mich.  6,  37  N.  W.  888. 

2  State  V.  Forcier,  65  N.  H.  42,  17  Atl.  577;  Pierce  v.  State, 
13  N.  H.  536-78;  State  v.  Freeman,  38  N.  H.  426;  State  v. 
Marshall,  64  N.  H.  549,  15  Atl.  210. 


pnARMACAi.   irKi.si'Rini:NCi;.  151 

is  iiKMliciiijil,  or  which  aro  foimuoiily  uiKlcrsloinl 
as  iiu'diciuos;  or,  at  least,  if  it  is  to  be  exteiuhMl 
to  auy  other  articles,  it  nuist  be  limited  to  cases 
where  they  are  prepared  and  sold  for  medicinal 
purposes.''  In  the  same  case  the  court  declares 
that  the  expression  ^'practice  of  pharmacy,"'  as 
used  in  the  title  of  the  act,  is  not  to  be  construed 
technically  and  as  referrini>-  simply  to  the  scien- 
tific compoundiuii-  and  dispensini]^  of  medicines, 
but  must  l)e  understood  to  include  the  commci-- 
cial  aspect  of  the  business  in  the  sale  of  the 
"drugs,  medicines,  and  poisons,"  referred  to  in 
the  body  of  the  statute;  and  says,  further,  that 
the  fact  that  the  sale  of  the  articles  named  is  not 
referred  to  in  the  title  does  not  invalidate  the 
provision  as  set  forth  in  the  body  of  the  act.  The 
terms  employed  in  the  expression  "practice  of 
pharmacy"  are  sufficiently  comprehensive  to  em- 
brace the  entire  usual  field  of  operations  included 
in  the  business  of  the  modern  druji\iiist.^ 

In  the  case  of  "People  v.  ^loorman,"  decide<l 
in  Michii»an  in  1801,  the  defendant  attacked  the 
validity  of  the  ]Miclii_nan  statute  of  1885  for  rec;- 
ulating  the  practice  of  pharmacy,  under  wJiicli 
he  was  beino-  prosecuted,  on  the  oround  that  its 
provisions  interfered  with  his  vested  rii»ht,  as  a 
physician,  to  compound  medicines,  etc.  The 
court  held  that  under  that  statute,   wliich   was 

I  Smith  V.  Alabama,  124  U.  S  4a>S0.  S  .Sup.  Ct.  Rep.  504, 
31  L.  Ed.  508,  11  r.  S.  Notes  483;  Railway  Co.  v.  Alabama, 
128  U.  S.  96,  Sup.  Ct.  Rep.  28,  32  L.  Ed.  352,'ll  U.  S.  Notes  621. 


152  CONSTITUTIONALITY    OF    LAWS. 

designed  to  restrict  the  practice  of  pharmacy  to 
those  only  who  were  properly  qualified  and 
licensed,  a  physician  "has  no  more  right  than 
any  other  person  to  step  into  a  drug  store,  and 
to  compound  or  sell  drugs,  medicines,  to  one  not 
his  patient."  It  was  also  contended  on  behalf 
of  the  defendant  that  the  law  conferred  upon  the 
board  of  pharmacy  an  arbitrary  power  to  collect 
fees.  The  part  of  the  statute  involved  in  this 
point  declares  "The  said  board  may  grant  under 
such  rules  and  regulations  as  it  may  deem  proper, 
at  a  fee  not  exceeding  one  dollar,  the  certificate 
of  registered  assistant  to  clerks  or  assistants  in 
pharmacy  not  less  than  18  years  of  age."  It  was 
held  that  the  language  of  the  section  does  not 
authorize  the  board  "to  fix  fees  arbitrarily,  and 
to  make  a  distinction  between  different  individ- 
uals." 

As  to  both  of  these  particular  features  of  the 
statute,  against  which  the  attack  was  directed, 
its  constitutionality  was  upheld.  On  another 
])oint,  however,  the  statute  did  not  meet  with  un- 
qualified judicial  endorsement.  The  defendant 
maintained  that  the  amendment  of  1887,  provid- 
ing that  no  person  shall  vend  patent  or  proprie- 
tary medicines  by  retail,  unless  he  has  been  in 
the  business  of  vending  and  retailing  such  med- 
icines for  three  years  or  more,  was  invalid.  His 
objection  thereto  was  urged  upon  the  grounds 
that  "it  grants  a  monopoly  to  a  favored  few  and 


PHARMACAL    jrRISPRUDENCE.  153 

for  no  adcMjiiate  reason ;  and  that  it  is  also  an  ob- 
ject in  tlie  law  not  embraced  in  tbe  title,  which 
reads,  "An  act  to  regulate  the  practice  of  phar- 
macy in  the  State  of  Michigan."  The  court  ad- 
mitted the  force  of  the  argument,  but,  not  deem- 
ing it  essential  to  the  case  to  decide  the  point,  it 
left  the  matter  unsettled.^ 

The  provision  last  discussed  seems  open  to  the 
charge  of  being  outside  of  the  true  scope  of  the 
police  power  of  the  State,  and  therefore  an  unwar- 
ranted and  unconstitutional  interference  with 
the  liberty  of  the  citizen.  The  reason  that  justi- 
fies the  rest  of  the  statute  seems  to  fail  with  re- 
gard to  the  part  under  consideration.  Such  a 
restriction  upon  the  power  to  vend  proprietary 
medicines,  the  mere  sale  of  which  requires  no 
special  care  or  skill  as  a  safeguard  to  the  com- 
munity, appears  to  lack  the  vital  element  which 
alone  can  excuse  the  State  for  interfering  "with 
the  conduct  of  individuals  in  their  intercourse 
with  each  other,  and  in  the  use  of  their  property." 
That  element,  in  this  case,  would  be  the  neces- 
sity or  State  obligation  to  protect  the  health  of 
the  community;  and  if  the  rule  cannot  be  de- 
fended upon  this  principle,  it  ought  to  be  de- 
clared unconstitutional,  and  such  would  proba- 
bly have  been  its  fate  had  the  court  found  it  nec- 
essary to  pass  upon  it. 


1  People  V.  Moorman,  86  Mich.  433,  49  N.  VV.  263,  9  Sup.  Ct. 
Rep.  28,  32  L.  Ed,  352,  11  U.  S.  Notes  621. 


154  CONSTITUTIONALITY    OF    LAWS. 

In  a  Missouri  case,  a  (juestiou  was  raised  as  to 
(he  validity  of  a  lejiislative  act  which  conferred 
iipou  a  board  of  health  the  ])owei'  to  judge  appli- 
cants to  practice  medicine,  a.s  to  their  moral 
character  as  well  as  to  their  literary  and  scien- 
tific attainments.  It  was  contended  that  such  a 
power  was  of  a  quasi-judicial  nature,  and  that 
the  exercise  thereof  by  a  board  of  health  was  re- 
pugnant to  the  constitution.  The  opinion  of 
Mr.  Justice  Gantt  in  this  case  presents  a  learned 
discussion  of  the  question  and  sustains  the  valid- 
ity of  the  act.^  Since  boards  of  health,  medical 
boards,  and  boards  of  pharmacy  perform  duties 
somewhat  similar  in  this  respect,  the  principle  is 
of  very  general  application  with  regard  to  this 
class  of  statutes. 

It  will  be  apparent  from  the  decisions  cited  in 
this  chapter,  that  the  general  question,  as  to 
whether  the  laws  regulating  the  practice  of  phar- 
macy in  the  ditferent  States  of  the  ITnion  are  con- 
stitutional, has  been  answered  by  the  courts  in 
the  affirmative.  The  statutes  of  the  Several 
States,  on  this  subject,  have  been  intended  to  ac- 
complish the  same  purpose  in  each,  and  they 
agree  in  their  main  features ;  therefore,  except  in 
a  few  isolated  cases  where  some  special  feature 
of  the  law,  peculiar  to  some  particular  State,  has 
been  the  point  under  examination,  the  decisions 
of  the  tribunals  of  the  different  States,  with  re- 

1  State  V.  Hathaway,  115  Mo.  36,  21  S.  \V.  1081. 


niAKMACAL    JlRISI'Rl-DEXCE.  155 

gard  to  the  constitutional  stains  of  these  laws, 
are  available  as  authority  tiirouulKtiit  all. 

It  may  be  received  as  settled,  dial  the  legisla- 
tures of  the  different  States  have  authority  to 
enact  laws,  of  uniform  operation,  re<;ulatin.i;  the 
practice  of  pharmacy  within  their  several  juris- 
dictions. In  pursuance  of  this  authority,  the 
State  may  declare  that  no  person  shall  engage  in 
the  practice  of  this  particular  calling,  without 
being  tirst  duly  licensed  thereto,  and  may  fix  the 
terms  upon  which  sueh  license  may  be  obtained. 
To  this  end  it  may  designate  Avhat  degree  of  skill 
and  learning  shall  be  required  of  the  licentiate, 
and  may  create  or  provide  for  the  creation  of  a 
board  of  pharmacy,  among  whose  duties  shall  be 
that  of  examining  applicants  for  admission  to 
the  profession.  It  may  likewise  authorize  such 
board  to  collect  a  fee  from  each  applicant,  Avhich 
fee  "is  merely  an  equivalent  for  the  service  ren- 
dered by  the  commission  in  making  the  examina- 
tion and  issuing  the  license,  and  cannot  be  con- 
sidered as  a  tax  upon  the  business,  or  as  depriv- 
ing the  applicant  of  his  ju'operty  without  due 
process  of  law.'' 

We  find  that  the  terms  "drugs,  medicines,  and 
poisons,"  as  used  in  statutes  regiilating  the  prac- 
tice of  ])harmacy,  have  been  held  to  mean  "arti- 
cles whose  iH'imary  and  principal  use  is  iiie<lici- 
nal,  or  which  are  comnmnly  understood  as  med- 
icines;'' or,  if  the  meaning  is  to  be  extended  to 


156  CONSTITUTIONALITY    OF    LAWS. 

otlipr  articles,  "it  must  be  limited  to  cases  where 
they  are  prepared  and  sold  for  medicimil  pur- 
poses." 

"Practice  of  Pharnmcy,"  in  the  title  of  one  of 
these  statutes,  is  held  to  incliKh'  not  simply  the 
compounding  and  dispensing  of  medicines,  but  to 
embrace,  also,  "the  commercial  aspect  of  the  busi- 
ness in  the  sale  of  the  ^drugs,  medicines,  and  poi- 
sons' referred  to  in  the  body  of  the  statute."  In 
fact,  they  express  the  entire  usual  field  of  opera- 
tions included  in  the  business  of  the  modern 
druggist. 

In  regard  to  a  physician's  status  relative  to  the 
practice  of  pharmacy,  it  has  been  decided  that  he 
"has  no  more  right  than  any  other  person  to  step 
into  a  drug  store,  and  to  compound  or  sell  drugs, 
medicines,  or  poisons  to  one  not  his  patient." 

The  courts  have  upheld  the  authority  of  the 
legislature  to  make  exceptions  to  the  general 
rules  embraced  in  these  statutes,  so  long  as  such 
exceptions  have  not  been  arbitrary  in  their  na- 
ture, but  have  operated  upon  uniform  principles, 
consistent  with  the  purposes  of  the  general  stat- 
utes. 

It  will  be  apparent  from  the  decisions  referred 
to  in  this  chapter,  that  the  courts  will  uniformly 
sustain  "the  constitutional  authority  of  the  leg- 
islature, in  the  exercise  of  the  police  power  of 
the  State  to  enact  such  regulations  as  are  reason- 
ably necessary  for  the  security  and  protection  of 


PHARMACAI.    JURISPRUDENCE.  157 

the  lives  and  liealth  of  all  persons  within  tlio 
State."  Nevertheless,  each  new  provision  in  tliis 
class  of  laws  will  probably  be  contested  by  those 
who  are  nnfriendly  to  such  restrictive  reo;ula- 
tions;  and  occasionally  the  judicial  pruninj? 
knife  will  be  applied  to  cut  away  some  develop- 
ment that  shall  be  deemed  repugnant  to  the  con- 
stitution. 


158  LICENSE    UNDER    STATUTE. 

CHAPTER  VII. 
License  Under  Statute. 

The  prevailing  statutes  regulating  the  practice 
of  pharmacy  provide  for  the  issuing  of  two  grades 
of  licenses,  corresponding  to  pharmacist  and  as- 
sistant pharmacist. 

The  license  issued  to  a  pharmacist  confers 
upon  the  licentiate  the  legal  right  to  practice  this 
profession  in  the  broadest  and  fullest  sense.  He 
is  thereby  privileged  to  conduct  a  pharmacy, 
either  as  proprietor  or  as  manager  for  anotlier ; 
to  sell  drugs,  medicines  or  poisons,  and  compound 
and  dispense  the  prescriptions  of  physicians. 

The  license  issued  to  an  assistant  pliarmacist 
confers  only  limited  privileges.  His  position  is 
simply  that  of  an  assistant,  and,  Avhile  acting  in 
that  capacity,  he  may  manufacture,  compound, 
sell,  or  dispense  any  drug,  poison,  medicine  or 
chemical  for  medicinal  use,  or  dispense  or  com- 
pound the  prescriptions  of  medical  practitioners, 
but  he  is  not  permitted  to  assume  the  manage- 
ment or  take  permanent  charge  of  any  store,  office 
or  any  place  where  these  things  are  done.  The 
extreme  limit  allowed  to  him,  in  this  respect,  is 
that  he  may  be  left  in  charge  of  such  a  place  dur- 
ing the  temporary  absence  of  the  pharmacist. 

As  explained  in  another  part  of  this  work,  the 
power  to  issue  license  under  these  statutes  is 
lodged  in  a  board  or  commission  of  pharmacy. 


PHAinrACAL   JURISPRUDENCE.  150 

Into  the  hands  of  this  board  of  pharniaev,  hold- 
ing office  generally  bv  gnbeniatorial  appoint- 
ment, is  given  large  discretion  in  this  matter  of 
granting  licenses.  This  discretion,  however,  is 
not  to  be  exercised  arbitrarily,  bnt  must  be  rea- 
sonable and  legal.  Their  tests  of  the  applicant's 
(pialifications  nuist  be  within  the  spirit  of  the 
statute,  and  must  be  uniform  in  all  cases.  If 
license  be  refused  without  just  cause,  mandamus 
will  lie  to  compel  a  board  to  grant  it.^ 

Special  provision  is  made  in  these  regulati(ms 
for  the  recognition  of  the  rights  of  all  persons 
lawfully  engaged  in  practice  at  the  time  that 
they  take  effect.  Such  persons  are  required, 
however,  to  present  themselves  for  registration 
as  pharmacists  within  a  certain  time;  in  default 
of  which  their  legal  standing  is  no  better  than 
that  of  him  who  has  never  been  engaged  in  the 
practice  or  admitted  to  the  profession.  In  fact, 
they  must  then  mak€  their  application  to  the 
board  of  examiners  and  undergo  the  ordeal  of 
the  prescribed  test,  as  required  of  all  others  who 
aspire  to  become  pharmacists. 

This  time  limit  for  registration  under  the  stat- 
ute was  upheld  in  the  State  of  New  York,  in  a 
case  under  the  statute  of  1893.  It  seems  that 
Chas.  W.  Ward  possessed  the  legal  qualifications 
of  a  ])harmacist  under  the  statute  of  1884,  but 

1  Harding  v.  People,  10  Colo.  887,  15  Fac.  727;  Dental  Exrs. 
V.  People,  123  111.  227,  13  N.  E.  201;  State  v.  Fleischer,  41 
Minn.  69,  42  N.  W.  696. 


160  LICENSE    UNDER    STATUTE. 

failed  to  register  within  tlie  uinetv  days  reipiired 
by  that  act.  By  way  of  relief  to  any  persons  hav- 
ing thus  failed  to  register  under  the  act  of  1884, 
the  statute  of  1893  provided  that  such  persons 
might,  within  ninety  days  after  its  passage,  on 
eight  dajH'  notice  to  the  Secretary  of  the  Board, 
apply  to  the  Supreme  Court  for  an  order  direct- 
ing the  Board  to  issue  to  him  a  license.  AVard 
failed  also  to  make  application  within  the  ninety 
days  provided  for  in  the  statute  of  1893,  and  at- 
tempted to  compel  the  State  Board  to  license 
him,  regardless  of  the  limitations  of  time;  but 
his  motion  to  that  end  was  denied. 

Though  the  powers  given  to  the  boards  of  ex- 
aminers under  these  statutes  regulating  the  prac- 
tice of  pharmacy,  medicine,  etc.,  must  not  be  ex- 
ercised arbitrarily,  yet  they  are  broad  and  ac- 
companied by  a  large  discretion.  They  must  be 
so  directed  as  to  carry  out  the  real  purpose  of  the 
law.  For  instance,  a  man  may  be  refused  a 
license  to  practice,  although  possessing  the  re- 
quired educational  qualifications,  "if  upon  due 
notice  and  hearing  he  is  fairly  proved  to  be  un- 
worthy of  public  confidence."^ 

In  the  matter  of  revoking  licenses  already 
granted,  it  must  appear,  first,  that  good  cause 
therefor  exists.^  Moreover,  no  such  action  must 
be  taken  against  any  person,  without  due  notice 

1  Gage  V.  Censors,  63  N.  H.,  92-94. 

2  People  V.  McCoy,  125  111.  289,  17  N.  E.  786. 


PHAR.MACAL    JURISPRUDENCE. 


IGl 


bein*i-  first  given  and  a  fair  lieariiig  accorded  to 
him.  His  right  to  pursue  liis  profession  is  to 
him  a  matter  of  property,  and  under  the  Consti- 
tution he  cannot  be  (U'])rived  of  his  property  with- 
out due  process  of  hnv.  If  a  man  believes  that 
he  has  been  treated  unjustly  by  the  Board  in  a 
case  of  this  kind,  he  can  seek  his  remedy  in  the 
courts.  In  a  western  case,  State  v.  Schultz,  the 
certificate  of  the  latter  to  practice  medicine  was 
revoked  without  notice  to  him  of  the  proceedings. 
He  continued  to  practice  and  appealed  to  the 
court  from  the  decision  of  the  Board.  In  the 
meantime,  the  Board  had  him  arrested  for  prac- 
ticing medicine  without  the  license  required  by 
the  statute.  He  was  convicted  and  appealed 
from  the  judgment  of  conviction.  The  appellate 
court,  in  reversing  the  judgment  of  conviction, 
said :  "No  prosecution  of  this  character  can  be 
maintained  under  the  circumstances,  and  the  ap- 
pellant should  have  Ueen  allowed  to  prove  that 
he  had  appealed  from  the  decision  of  the  board  in 
revoking  his  certificate,  and  that  the  appeal  was 
pending  in  the  appropriate  tribunal."  Pursuing 
the  subject  further,  the  court  said :  "The  decis- 
ion of  the  board  in  this  matter  is  not  final,  and 
upon  an  appeal  the  courts  may  declare  null  and 
void  its  proceedings."^  In  a  Mississippi  case,  in- 
volving the  disbarment  of  an  attorney,  without 
notice  to  him  of  the  proceedings,  the  court  said  : 
"It  is  a  cardinal  principle  in  the  administration 

1  State  V.  Schultz,  11  Mont.  429,  28  Pac.  643. 


162  LICENSE    UNDER    STATUTE. 

of  justice  that  no  man  can  be  condemned  or  di- 
vested of  his  rijihts  until  he  has  had  tlie  oppor- 
tunity of  l)eiug-  heard.-'^ 

In  tlie  matter  of  practicing  pliarniacv  witliont 
license,  these  statutes  are  prohibitory.  Even  a 
ph^^sician,  though  regularly  licensed  to  practice 
medicine,  is  not  permitted  to  conduct  a  drug 
store,  or  compound  or  dispense  medicines  to  any 
person  other  than  his  o\vn  patient,  without  first 
procuring,  in  the  usual  way,  a  license  to  practice 
pharmacy.^  Nor  would  a  physician  or  any  other 
person  engaging  in  the  practice  of  pharmacy, 
without  being  duly  licensed  therefor,  be  per- 
mitted to  recover  by  process  of  la\y  the  value  of 
his  medicines  or  services. 

This  last  rule  is  of  general  application  to  all 
persons  who  unlawfully  engage  in  any  business." 
Nor  will  such  persons,  thus  unlawfully  pursuing 
a  profession,  be  permitted  in  an  action  at  law  to 
recover  judgment  for  damages  on  account  of  de- 
famatory words  directed  against  them  in  their 
professional  capacity.^ 

1  Ex  parte  Heyfron,  7  How.  (Miss.)  127;  People  v.  Turner, 
1  Cal.  150,  52  Am.  Dec.  295  and  Note,  1  Cal.  Note  1-3. 

2  Hewitt  V.  Charier,  16  Pick  353;  State  v.  Vandershiis,  42 
Minn.  129,  43  N.  \V.  789,  6  L.  R.  C.  119;  State  v.  Green,  112 
Ind.  462,  14  N.  E.  352;  State  v.  Hathaway,  115  Mo.  36,  21  S.  W. 
1081;  State  V.  Creditor,  44  Kan.  565.  21  Am.  St.  Rep.  306,  24 
Pac.  346;  Brown  v.  People,  11  Colo.  109,  17  Pac.  104. 

•i  Ferdon  v.  Cunningham,  20  How.,  Pr.  154;  Lanzer  v. 
Unterberg,  9  Misc.  210,  29  N.  Y.  Supp.  683;  Bloom  v.  Soberski, 
8  Misc.  311,  28  N.  Y.  Supp.  731 

.  -1  Hargan  v.  Purdy,  93  Ky.  424,  14  Ky.  Law  Rep.  383,  20  S.  \V. 
432;  Skirving  v.  Ross,  31  Upper  Can.,  423;  Collins  v.  Carnegie, 
I.  A.  &  E.  695. 


I'll  ARM  ACAI,     irKIsrKrDKNCE.  163 

>VlK'n»  (he  stalulc  ]H'(»vi<l('S  Unit  license  iiiji.v 
not  be  rev()k(Hl  foi*  a  cause  ])unishaltl<'  1>\'  law, 
until  after  conviction  by  a  court  of  conipeient 
jurisdiction,  aud  defendant  pleads  oujlty  in  such 
court,  then,  tliouiih  the  court  nmy  ueji'lect  to 
make  any  further  order  in  the  case,  vet  tlie  Board 
of  Pharnuu-y  may  revoke  the  license.  Its  juris- 
diction is  indeix'udent.^ 

1  Munkley  v.  Hovt,  (H)  N.  E.  413,  179  Mass.  lOR;  Common- 
wealth V.  Hoviour,  66  S.  \V.  323,  Ky.  Law  Rep.  1724. 


164  EXPLANATORY    OF    CONTRACTS. 

CHAPTER  VIII. 

Explanatory  of  Contracts. 

The  plan  of  this  work  requires  us  to  touch, 
though  rather  lightly,  upon  the  vast  domain  of 
contract  law,  the  principles  of  which  enter  in 
some  form  into  almost  every  relation  of  life. 
The  business  man's  daily  work,  from  the  simplest 
exchange  of  values  to  the  most  complicated  com- 
mercial problem,  is  a  sort  of  network  Avoven  of 
contracts  of  greater  or  less  magnitude;  from 
which  it  follows  that  their  interpretation  and  con- 
struction forms  a  great  part  of  the  civil  business 
of  the  courts. 

A  contract  "is  an  agreement,  upon  sufficient 
consideration,  to  do  or  not  to  do  a  particular 
thing."^  Mr.  ^torj  and  Mr.  Parsons  define  it 
as  "a  deliberate  engagement  between  competent 
parties,  upon  a  legal  consideration,  to  do,  or  to 
abstain  from  doing,  some  act."  "There  must  be 
a  person  able  to  contract;  a  person  able  to  be  con- 
tracted with ;  a  thing  to  be  contracted  for;  a  suffi- 
cient consideration ;  words  clearly  expressing  the 
agreement ;  and  the  assent  of  both  parties  to  the 
same  thing  in  the  same  sense."^  "A  contract  is 
resolvable  into  proposal  and  acceptance,  the  pro- 
posal not  to  bind  beyond  a  reasonable  time,  and, 
until  accepted,  may  be  conditional.     The  place 

1  Blackstone's  Commentaries,  Vol.  2,  page  442. 

2  Justice  V.  Lang,  42  N.  Y.  497,  1  Am.  Rep.  576. 


PHARMACAL    U'RISPRUDEXCE.  165 

and  time  of  acceptauce  are  the  place  and  time  of 
the  contraet.  The  assent  must,  he  <h'tini<e;  non- 
refnsal  is  not  encmiili."'  Mr.  Jnstice  I'iehl  says: 
"mntnal  assent  to  the  tei-ms  is  of  the  very  es- 
sence. "*- 

It  will  he  snttieient,  in  this  place,  to  consider 
contracts  as  divided  into  express  contracts,  con- 
tracts implied  as  of  fact,  contracts  created  l)y 
law,  and  qnasi  contracts.  An  express  contract 
is  one  in  which  there  is  a  formal  agreement, 
stated  either  orally  or  in  writing;  and  a  contract 
implied  as  of  fact  is  an  express  contract,  the  ex- 
istence of  which  can  not  he  proved  hy  direct  evi- 
dence, but  must  be  inferred  or  presumed  from 
existing  conditions  or  circumstantial  evidence. 
The  sole  difference  between  the  two  is  in  the  form 
of  proof.^  A  conveyance  of  land  made  to-day 
might  be  proven,  in  the  near  future,  to  have  been 
based  upon  an  express  contract,  while  thirty 
years  hence,  with  records  destroyed  and  wit- 
nesses dead,  it  might  be  established  only  as  a 
contract  implied  as  of  fact.  From  this  it  will  be 
readily  understood  that,  so  far  as  concerns  the 
real  nature  of  the  transaction  and  the  principle 
involved,  there  is  no  difference  between  the  ex- 
press contract  and  the  contraet  implied  as  of  fact. 

A  contract  created  or  implied  by  law  is  one  in 

1  Wharton  on  Contracts,  Chap.  I. 

2  Louisiana  v.  Mayor  of  New  Orleans,  109  U.  S.  288,  3  Sup. 
Ct.  Rep.  211,  27  L.  Ed.  936,  10  U.  S.  Notes  fi28 

'■'-  Bishop  on  Contracts,  Sec.  257. 


166  EXPLANATORY    OF    CONTRACTS. 

which  the  assent  or  agreement  has  not  been  ex- 
pressed, but  in  which  the  hiw  infers  or  presumes, 
from  the  existing  obligation,  that  such  assent  or 
agreement  was  intended  by  the  parties.  If  one 
orders  goods  from  a  mereliant  or  procures  ser- 
vices from  a  professional  man  or  laborer,  but 
says  nothing  of  pay,  the  hiw  will,  ordinarily,  im- 
ply or  create  a  promise  to  pay  for  such  goods  or 
services,  and  thus  in  the  interest  of  justice  will 
complete  a  binding  contract.  For,  in  cases  of 
this  kind,  "the  law  supplies  that  which,  not  being 
stated,  must  be  presumed  to  have  been  the  agree- 
ment intended."^ 

It  may  be  stated  as  a  principle  that  wherever 
''mutual  assent  to  the  terms"  of  the  agreement 
exists,  it  is  a  legal  contract,  whether  those  terms 
ar(^  stated  in  words  or  merely  implied  by  acts. 

A  ({uasi  contract  has  been  defined  as  "An  un- 
assented-to  obligation  in  the  nature  of  a  con- 
tract." It  is  apparent  from  the  definition  that 
obligations  of  this  class  are  not  to  be  deemed  true 
contracts,  since  they  lack  the  essential  quality  of 
mutual  assent  to  their  terms.  It  can  hardly  be 
said  that  the  law  cures  this  defect  by  creating  or 
implying  a  promise,  since  the  very  conditions  of 
these  obligations  are  generally  repellent  to  the 
idea  of  assent  by  the  party  to  be  charged.  What 
the  law  does  in  these  cases  is  to  settle  the  fact 
that  an  oldigation  exists,  nolens  voJcns^  an<l  tlie 

1  Story  on  Contracts,  Vol.  II;  Leake  on  Contracts,  \'ol.  II. 


PHARMACAL    JURISPRUDENCE.  107 

legal  relations  thus  result iiig  are  in  the  nature 
of  a.  eontraet.  If  by  accident  one  person  conies 
into  possession  of  money  belonging  to  another, 
he  is  under  an  obligation  to  deliver  the  same  to 
him  to  whom  it  rightfully  belongs.  The  law  does 
not  create  a  promise,  but  it  fixes  an  obligation, 
based  upon  the  principle  that  one  person  is  not 
to  be  unjustly  enriched  at  the  expense  of  another. 

An  express  contract  may  be  either  oral  or  in 
writing.  In  the  one  case,  the  intention  of  the 
parties  is  made  known  by  their  spoken  words, 
while  in  the  other,  it  appears  from  their  written 
statement.  These,  however,  are  but  two  dit¥er- 
ent  ways  of  expressing  intention,  giving  rise, 
again,  to  a  corresponding  difference  in  the  modes 
of  proving  the  two  different  forms  of  contract. 

The  terms  or  covenants  of  an  oral  contract 
may  be  proved  by  evidence  derived  from  oral  tes- 
timony; but  those  of  a  written  contract  must  be 
proved  by  the  instrument  itself,  unless  from  the 
evidence  it  satisfactorily  appears  to  the  court 
that  the  writing  cannot  be  found,  or  is  in  the  pos- 
session of  the  opposite  party,  upon  either  of 
which  conditions  oral  testimony  may  be  intro- 
duced to  prove  its  contents. 

The  several  States  of  the  T^nion  have  enacted 
statutes,  based  upon  the  English  statute  of 
frauds,  providing  that  certain  contracts  shall  be 
invalid  unless  some  memorandum  (tf  their  terms 
be  in  writing  and  subscribed  by  the  ])arty  to  be 


168  EXPLANATORY    OF    CONTRACTS, 

charged,  or  by  his  agent.  Of  this  class  are,  1, 
"An  agreement  that  by  its  terms  is  not  to  be  per- 
formed within  a  year  from  the  making  thereof;'' 
2,  "A  special  promise  to  answer  for  the  debt,  de- 
fault or  miscarriage  of  another;"  3,  "An  agree- 
ment made  upon  consideration  of  marriage, 
other  than  a  mutual  promise  to  marry ;"  4,  "Any 
special  promise  by  an  executor  or  administrator 
'to  answer  damages  out  of  his  own  estate'."  5, 
Any  agreement  for  the  sale  of  real  property;  (I, 
Any  agreement  for  the  sale  of  personal  property, 
above  a  certain  value,  ( which  varies  in  different 
States),  unless  there  be  a  delivery  or  a  part  pay- 
ment. 

These  rules  appear  with  some  modifications  in 
the  statutes  of  the  different  States,  respectively, 
and  the  reader  is  advised  to  consult  those  of  the 
State  in  which  he  resides. 


PHAKMACAI.    JURISPRUDENCE.  169 


CHAPTER  IX. 

Contracts  of  Duuggi.st  and  Pharmacist. 

It  is  not  inteiuled  to  deal  here  with  the  ordi- 
nary simple  contracts  into  which  the  dniggist 
as  a  business  man  may  Yohmtarilv  enter.  In  re- 
gard to  such  agreements  his  obligations  will,  of 
course,  be  the  same  as  those  of  other  business 
men,  and  his  responsibilities  will  be  gauged  by 
the  general  rules  applicable  to  such  relations. 
There  are  certain  peculiar  obligations,  however, 
of  the  nature  of  implied  contracts,  that  rest  upon 
the  modern  druggist,  in  his  twofold  capacity  of 
dealer  in  drugs  and  practitioner  of  pharmacy, 
and  it  is  these  which  now  claim  our  attention. 

In  a  former  chaptw  we  have  given  a  brief  out- 
line of  the  history  and  development  of  pharmacy. 
It  is  there  shown  that  the  modern  drug  business 
is,  in  a  sense,  an  ofifshoot  of  the  grocery  business, 
and  that  as  late  as  the  seventeenth  century,  in 
England,  these  two  now  distinct  branches  of 
commerce  were  one,  and  carried  on  by  the  guild 
of  grocers.  These  dealers  in  provisions  were 
held  to  an  implied  warranty  that  all  articles 
sold  l\y  them  for  domestic  use  were  sound  and 
wholesome,  and  the  same  I'lile  is  held  to  a])]»ly  in 


170  CONTRACTS. 

this  ai>e  and  in  this  coiintrv,  at  least  to  the  extent 
of  the  pnrc'hase  price  of  the  j^oods.^ 

Wlien,  in  the  vear  1615,  rarlianient  passed  tlie 
act  by  which  tlie  apothecaries  or  druggists  were 
separated  from  the  grocers  and  established  as  a 
distinct  guild  or  corporation,  the  same  legal 
status  attended  the  apothecary  as  that  which 
defined  his  operations  as  a  grocer.  lie  was 
bound  by  the  same  obligation  of  warranty  as  to 
the  quality  of  the  articles  sold  by  him.  Indeed, 
it  may  be  said  that  the  stringency  of  the  rule  in 
its  application  to  cases  has  increased  rather  than 
diminished,  with  the  advancement  of  the  drug- 
gist's standing  and  opportunities  in  modern 
times.  However,  the  force  of  this  rule  of  law 
which  lays  upon  the  dealer  in  drugs  this  extra- 
ordinary responsibility  as  to  the  quality  of  the 
goods  sold  by  him  is  not  merely  historical ;  for 
the  fact  is  that  the  reason  of  the  rule  exists  with 
greater  significance  in  the  case  of  the  druggist 
than  in  the  case  of  the  grocer,  from  wliom  he 
may  be  said  to  have  descended. 

The  rule  of  general  application  in  the  sale  and 
purchase  of  goods  is  ''caveat  emptor,'^  which 
warns  the  purchaser  of  any  specific  article  that 
he  must  see  to  it  that  the  thing  purchased  by  him 

1  Fleet  V.  Hollenkemp,  13  B.  Mon.  219,  50  Am.  Dec.  563; 
Van  Bracklin  v.  Fonda,  12  Johns  468,  7  Am.  Dec.  339,  3  Bla. 
Com.  165;  Hyland  v.  Sherman,  2  E.  D.  Smith  234;  Wright  v. 
Hart,  18  Wend.  449;  Burch  v.  Spencer,  15  Hun.  504;  Miller  v. 
Scherder,  2  N.  Y.  267;  Hoover  v.  Peters,  18  Mich.  51;  Ely  v. 
O'Leary,  2  E.  D.  Smith  261;  McNaughten  v.  oy,  1  Weekly 
Notes  Cas.  470. 


PHARMACAL    U'RISPRUDENCE.  171 

is  such  as  he  wants.  Under  this  rule,  in  the  ab- 
sence of  fraud  or  misrei^resentation  on  the  part 
of  the  seller,  if  the  buyer  does  not  secure  the 
quality  or  kind  of  goods  that  he  intended  to  pur- 
chase, the  law  will  not  hold  the  seller  liable. 

The  above  rule  applies  where  the  sale  is  on  in- 
spection, and  the  knowledge  possessed  by  the 
vendee  is  eq\\i\\  to  that  of  the  vendor.^  It  has 
even  been  held  to  apply  in  a  case  where  goods  had 
been  ordered  from  the  seller  and  the  purchaser 
had  not  seen  them  until  after  delivery,  on  the 
theory  that  in  such  a  case  the  vendee  constitutes 
the  vendor  his  agent  to  select  the  goods  for  him, 
and  the  former  is  bound  only  to  the  fair  exercise 
of  his  judgment  in  making  the  selection.^  Nor 
is  the  purchaser  relieved  from  the  force  of  this 
rule  when  buying  goods  that  are  packed;  as 
paint  sold  in  kegs'^,  crockery  in  crates^,  flour  in 
barrels^,  hemp  in  bales^,  tobacco  in  kegs",  mo- 
lasses in  barrels^.  The  rule  as  applied  to  flour  and 
molasses  in  these  examples  might  seem  to  be  op- 
posed to  the  rule  of  guaranty  which  prevails  in 
the  case  of  provisions;  but  it  must  be  remem- 
bered that  tlie  latter  rule  is  applicable  only  to 

1  Lord  V.  Grow,  39  Pa.  St.  88,  80  Am.  Dec.  504. 

2  Dickson  v.  Jordan,  10  Ind.  L.  166,  53  Am.  Dec.  403. 
-  Holden  v.  Dakin,  4  Johns  421. 

4  Thompson  v.  Ashton,  14  Johns  316. 

5  Hart  V.  Wright,  17  Wend.  267. 

6  Salisbury  v.  Stainer,  19  Wend.  159,  32  Am.  Dec.  437. 

7  Hyatt  V.  Boyle,  5  Gill,  and  J.  110,  25  Am.  Dec.  276. 
s  Humphreys  v.  Comline,  S  Biackf.  516. 


172  CONTRACTS. 

proA'isioiis  sold  "for  (loiucstu'  use"'  and  cannot  be 
invoked  wlieresueh  articles  are  bought  in  the  way 
of  merchandise  to  be  sold  again.^ 

Such  is  the  common  law  doctrine  of  ''caveat 
emptor/^  and  the  above  instances  will  serve  to 
show  some  of  the  legal  and  reasonable  limits  of 
its  applications.  In  the  case  of  the  druggist, 
however,  the  rule  may  be  said  to  be  reversed  and 
the  civil  law  doctrine  of  ''caveat  venditor/'  wliicli 
warns  the  seller  instead  of  the  purchaser  to  be- 
ware, is  applied  upon  equally  reasonable 
grounds.  In  rendering  a  decision  in  a  leading- 
American  case,  the  Court  said,  "As  applicable  to 
the  owners  of  drug  stores,  or  persons  engaged  in 
vending  dangerous  medicines  by  retail,  J:he  legal 
maxim  should  be  reversed.  Instead  of  ''^caveat 
emptor"  it  should  be  '^'caveat  venditor.''  That  is 
to  say,  let  him  be  certain  that  he  does  not  sell  to  a 
purchaser,  or  send  to  a  patient,  one  drug  for  an- 
other, as  arsenic  for  calomel,  cantharides  for,  or 
mixed  with,  snakeroot  and  Peruvian  bark,  or 
even  one  innocent  drug,  calculated  to  produce  a 
certain  effect,  in  place  of  another  sent  for,  and 
designed  to  produce  a  different  effect."- 

The  druggist  is  lield  not  only  to  the  common 
law  guaranty,  applicable  to  grocers,  that  the  arti- 
cle sold  by  him  is  wholesome,  but  he  is  also 
deemed  to  warrant  tliat  it  is  tlie  identical  sub- 
stance asked  for  hy  tlie  purcliasei*.     Tlie  reason 

1  Emerson  v.  Brigham,  10  Mass.  197,  (>  Am.  Dec.  109. 

2  Fleet  V.  Hollenkemp,  5(i  Am.  Dec.  563,  13  B.  i\Ion.  229. 


PHARMACAF,    J  rklSPRUDEXCE.  173 

of  tliis  nilo  was  clcnrly  stnlcd  by  tlio  Court  in  a 
Texas  case  ou  appeal  from  tlie  district  court  of 
(xalveston  Coimty.  In  this  case  Jii(l<>e  Watts 
said,  ''It  is  claimed  that  in  the  sak'  of  cliattels, 
where  the  purchaser  has  au  opportunity  to  exam- 
ine before  the  purchase  is  made,  that  the  com- 
mon law  rule  of  'caveat  emptor'  applies  without 
exception.  As  a  general  rule  the  doctrine  does 
apply  in  the  purchase  of  chattels,  when  an  op- 
portunity for  examination  by  the  purchaser  is 
shown.  But  when,  from  the  nature  of  the  arti- 
cle, or  t\M  peculiar  character  of  the  business  in 
which  the  same  is  being  sold,  it  is  shown  that  an 
examination  would  not  avail  the  purchaser  any- 
thing-, it  might  constitute  an  exception  to  the  gen- 
eral rule,  dependent  upon  the  circumstances  of 
each  particular  case.  The  appellee  was  engaged 
in  the  business  of  diniggist,  holding  himself  out 
to  the  public  as  one  having  the  peculiar  learning 
and  skill  necessary  to  a  safe  and  proper  conduct- 
ing of  the  business.  The  general  customer  is  not 
supposed  to  be  skilled  in  the  matter,  and,  as  rep- 
resented in  this  case,  does  not  know  one  drug 
from  another;  but  in  the  purchase  of  drugs,  the 
customer  must  rely  upon  the  druggist  to  furnish 
the  article  called  for;  and  in  this  particular  busi- 
ness, the  customer  who  has  not  the  experience 
and  learning  necessary  to  a  ])roper  vending  of 
drugs  would  not  be  held  to  the  rule  that  they 
must  examine  for  themselves.     It  would  be  but 


174  CONTRACTS. 

idle  mockery  for  the  customer  to  make  the  exam- 
ination, when  it  would  avail  him  nothing.  On 
the  contrar}',  the  business  is  such  that  in  the  very 
nature  of  things  the  druggist  must  be  held  to 
warrant  that  he  will  deliver  the  drug  called  for 
and  purchased  by  the  customer."^ 

In  brief,  then,  every  druggist,  simply  as  a 
dealer  in  drugs,  is  held  to  be  bound  by  a  contract 
of  guaranty,  to  every  purchaser  unskilled  in  the 
nature  of  drugs,  that  the  article  sold  by  him  is 
that  which  the  purchaser  has  called  for,  and  that 
the  same  is  wholesome  and  of  good  quality.  This 
rule,  in  itself,  involves  a  grave  responsibility,  but 
the  extraordinary  liabilities  of  the  pharmacist 
do  not  end  with  this.  It  is  held,  in  a  leading 
American  case,  that  "It  is  his  duty  to  know  the 
properties  of  his  drugs,  and  to  be  able  to  distin- 
guish them  from  each  other.  It  is  his  duty  to 
so  qualify  himself,  or  to  employ  those  that  are 
so  qualified,  to  attend  to  the  business  of  com- 
pounding and  vending  medicines  and  drugs,  as 
that  one  drug  may  not  be  sold  for  another;  and 
so  that  when  a  prescription  is  presented  to  be 
made  up,  the  proper  medicines,  and  none  other, 
be  used  in  mixing  and  compounding  it."^ 

In  fact,  the  pharmacist  guarantees,  to  every 
person  for  whom  he  prepares  a  prescription,  that 
he  possesses  the  requisite  scientific  knowledge 
and  skill  to  enable  him  to  correctly  compound  the 

1  Jones  V.  George,  56  Tex.  149,  42  Am.  Rep.  689. 

2  Fleet  V.  Hollenkemp,  13  B.  Mon.  229,  56  Am.  Dec.  563. 


PHARMACAL   JURISPRUDENCE.  175 

same.  He  contracts,  not  only  to  use  drugs  that 
are  of  the  right  kind  and  wholesome,  but  also,  in 
compounding  such  drugs,  to  use  ordinary  skill 
and  knowledge  combined  with  ordinary  care. 
And  it  must  be  remembered  that  in  thus  dealing 
with  dangerous  drugs,  ^'ordinar}'  care"  means  a 
degree  of  care  in  proportion  to  the  risk. 


176  LIABILITY    OF    DRUGGIST. 

CHAPTER  X. 

Liability  of  Retail  Druggist  for  Negligence. 

The  Kentucky  case  of  Holleukemp  v.  Fleet 
and  Semple,  known  in  the  Kentucky  Court  of 
AppeaLs  as  Fleet  y.  Hollenkenip,  is  a  leading 
case  in  the  matter  of  the  liability  of  retail  drug- 
gists. The  opinion  of  the  Court  was  prepared 
b}'  Justice  Hise,  and  it  is  so  direct  and  compre- 
hensiye  in  the  treatment  of  the  subject,  that  it  is 
thought  best  to  present  the  entire  text  of  the 
opinion  for  the  perusal  of  the  student. 

'SJolm  Holleukemp  sued  William  T.  Fleet  and 
Samuel  P.  Semple,  partners  in  the  business  of 
yending  drugs  by  retail,  in  an  action  upon  the 
case,  for  haying,  through  negligence,  permitted 
a  portion  of  the  poisonous  drug  called  'canthar- 
ides'  to  be  intermingled  with  some  snakeroot  and 
Peruvian  bark  which  he  had  purchased  at  their 
drug  store,  and  which  he,  being  then  indisposed, 
l)y  the  adyice  of  his  i^hysician,  had  taken  as  med- 
icine for  his  restoration,  not  knowing  that  the 
poison  had  been  mixed  with  the  bark  and  snake- 
root,  and  that  in  consequence  he  had  been  yery 
sick,  endured  great  suffering,  pain,  and  agony, 
and  that  his  health  had  been  thereby  permanent- 
ly injured.  The  defendant  appeared,  and  plead- 
ed not  guilty.  There  was  a  trial,  verdict,  and 
judgment  against  the  defendants  for  one  thou- 


PHARMACAL    J  URISTKUDENCE.  177 

sand  oue  Imiidrt'd  and  forty  dollars  and  seventy- 
five  cents  damages,  and  costs  of  suit. 

"The  defendants  moved  the  Court  to  set  aside 
the  verdict  and  judgment,  and  <o  grant  them  a 
new  trial,  upon  various  grounds,  which  nuiy  be 
all  summed  up  and  stated  as  follows: 

"1.  Because  of  the  discovery  of  iuiportant  evi- 
dence made  during  the  progress  of  tlie  trial,  for 
tlie  first  time,  and  which  they  allege  they  had 
neither  the  opportunity  nor  power  to  x^i'<H'ure 
and  offer  to  the  jury. 

"2.  Because  the  danuiges  found  by  the  jury 
were  excessive,  and  unwarranted  by  the  facts  in 
the  case  and  the  proof  in  the  cause. 

"3.  Because  the  court  erred  in  giving  tlie  in- 
structions asked  for  by  the  plaintiff's  c(mnsel, 
and  in  refusing  those  asked  for  by  the  counsel 
of  the  defendant, 

"The  court  refused  to  grant  a  new  trial,  and 
the  defendants'  motion  to  that  eff(^ct  \Nas  o^•er- 
ruled.  The  defendants  filed  their  bills  of  excep- 
tions to  this  and  other  decisions  of  the  court 
given  pending  the  trial. 

"The  evidence  was  reduced  to  writing  and  cer- 
tified, and  the  defendants  have  appealed  to  this 
court. 

"The  evidence  collectively  ])reseuls,  in  sub- 
stance, the  folldwiiig  state  of  facts:  'flie  ])laiu- 
tiff  having  beeu  sick  for  some  time  liad  iuiprovi^l 
and  was  coii\alesceul.     A  Ionic  pi-eparnt  ion  was 


178  LIABILITY    OF    DRUGGIST. 

recommended  by  the  nttendinti;  physician,  who 
made  out  a  written  prescription  for  the  plaintiff, 
as  follows:  That  he  should  procure  two  ounces 
of  snakeroot  and  two  ounces  of  Peruvian  bark,  in 
the  form  of  a  powder,  to  be  mixed  and  divided 
into  four  portions;  to  be  made  into  a  tea,  by  the 
application  of  three  pints  of  water  to  each  por- 
tion of  snakeroot  and  bark;  the  patient  to  take 
half  of  a  teacupful  of  the  decoction  twice  each 
day.  This  prescription  was  sent  by  the  plaintiff 
to  the  defendants'  drug  store  to  be  filled.  There 
the  two  ounces  of  snakeroot  and  two  ounces  of 
Peruvian  bark  were,  by  the  clerk,  in  the  presence 
of  one  of  the  defendants,  put  into  a  mill  to  be 
ground  into  a  powder,  and  passed  through  the 
mill,  and  thus  pulverized. 

''It  was  then  put  up  in  separate  papers,  as  di- 
rected by  the  prescription,  and  delivered  to  the 
plaintiff's  messenger,  who  carried  them  to  the 
plaintiff.  A  tea  was  nmde  of  one  of  the  potions. 
The  patient  drank  a  half  teacupful  of  the  prep- 
aration, and  shortly  afterward  the  effect  pro- 
duced by  the  dose  was  so  unexpected  and  extra- 
ordinary that  the  same  physician  was  sent  for 
who  had  drawn  up  the  prescription,  who,  upon 
his  arrival,  found  his  patient  laboring  under  all 
those  violent  symptoms  which,  according  to  all 
the  evidence  on  the  subject,  are  produced  by 
cantharides  when  taken  in  sufficient  quantity 
into  the  stomach.     Tlie  ])hysician,  his  suspicions 


PHARMACAf.   JIRISPRUDENCE.  179 

beiiiij:  aroused,  procured  and  examined  the  three 
remaininji  potions  of  the  medicine,  as  compound- 
ed at  defendants'  drug-  store,  and  easily  detected 
the  presence  of  Spanish  flies  in  the  mixture. 

"They  were  taken  to  the  drug  store  to  inquire 
into  the  matter.  The  potions  were  recognized  as 
having  been  compounded  and  put  up  in  that  store 
by  the  clerk,  and  the  fact  that  some  Spanish  flies 
had  been,  in  some  way,  mixed  with  the  bark  and 
snakeroot  was  detected  and  admitted. 

"It  is  unnecessary  to  state  in  detail  the  symp- 
toms and  effects  exhibited  by  the  patient  after 
taking  one  dose  of  the  tea  as  directed ;  the  proof 
is  conclusive  and  satisfactory  that  they  were 
most  violent,  dangerous,  and  excruciating,  and 
precisely  such  as  would  be  produced  by  a  suffi- 
cient dose  of  cantharides.  It  is  true  that  there 
was  contrariety  of  opinion  expressed  by  the  phy- 
sicians examined  as  to  the  durability  and  per- 
manency of  the  injurious  effects  produced  by  the 
drug.  The  attending  physician  gave  it  as  his 
opinion  that  the  symptoms  exhibited  were  pro- 
duced by  the  cantharides,  and  that  the  plaintiff's 
health  had  been  permanently  injured  by  the  dose 
which  he  had  taken.  Several  other  doctors  ex- 
amined gave  it  as  their  opinion  that  generally  the 
effects  of  this  drug,  unless  taken  in  sufficient 
quantity  to  produce  death,  would  be  only  tem- 
porary and  evanescent.  That  they  had  never 
known  an  instance  where  the  health  of  a  person 


180  LIABILITY    OF    DRUGGIST, 

siii'viviuji,-  the  imiiiediate  effects  produced  by 
caiitliarides  lia<l  been  ])erniaiieiitly  injured; 
tlKHiuli  they  did  not  deny  that  such  might  be  the 
consequence  in  some  cases,  where  the  peculiar 
condition  of  the  patient's  system  was  such  as  that 
the  poisonous  quality  of  the  drug  might  be  more 
pernicious  and  virulent  in  its  effects,  and  that  in 
special  cases  it  might  cause  permanent  ill  health. 
"There  was  evidence  introduced  by  the  de- 
fendants which  was  intended  to  screen  and  ex- 
empt them  and  their  agent  or  clerk  from  the 
charge  or  imputation  of  having  been  guilty  of  in- 
excusable negligence  in  compounding  and  putting 
up  the  medicines,  to  wit,  the  snakeroot  and 
Peruvian  bark,  as  required  by  the  prescription 
furnished  by  the  plaintiff's  medical  adviser.  The 
physicians  examined  as  witnesses  all  concur  in 
proving  that  the  violent  and  injurious  effects 
produced  upon  the  plaintiff  by  the  dose  which 
had  been  taken  hy  him  could  not  have  resulted 
if  if  had  contained  nothing  but  the  snakeroot  and 
Peruvian  bark;  that  when  taken  in  the  quanti- 
ties as  administered  to  plaintiff  they  are  harm- 
less and  innocent  drugs,  and  the  fact,  as  deduced 
from  all  the  testimony  in  the  case,  is  conclusively 
established  that  although  the  plaintiff  sent  them 
a  prescription  for  snakeroot  and  Peruvian  bark 
only,  the  defendants,  being  druggists,  sent  them 
in  return,  say  by  mistake,  a  compound  made  up 
of  the  drugs  required,  intermixed  with  a  most 


rilARMACAI.     lUKISPKl-DKNTK.  181 

pernicious  and  deleterious  ]K)ison,  which  in  fact 
hears  no  kind  of  resenihlance  to  the  medicines 
named  in  the  prescription,  and  the  niinglinj;-  of 
whidi  with  the  innocent  drui>s  sent  for  by  the 
l)laintiff  was  caused  by  improperly  pulverizing 
the  root  and  bark,  by  uTinding  them  in  the  same 
mill  in  which  Spanish  flies  had  been  previously 
ground. 

''To  sustain  the  ground  taken  for  a  new  trial 
that  new  evidence  had  been  discovered  pending 
the  trial,  which  circumstances  rendered  unavail- 
able, the  defendants  rely  upon  the  affidavits  of 
Keulun  Broaddus  and  T.  N.  Wise.  Hroa<ldus 
states  in  substance  that  he  knew  the  plaintiff  as 
far  back  as  1844,  and  that  he  then  and  frequently 
afterwards  complained  of  weakness  and  feeble- 
ness, and  that  his  health  was  so  frail  that  some- 
times he  was  not  able  to  perform  hard  labor ;  that 
>\iiat  he  knew  upon  the  subject  was  not  discov- 
ered to  the  defemhiuts  until  their  attorney  had 
commenced  his  argument  to  the  jury. 

''Assume  these  statements  to  be  true,  they  do 
not  sustain  the  motion  for  a  new  trial;  because: 
First,  if  the  testimony  of  liroaddus  Avould  have 
been  important  in  aid  of  the  defense,  upon  mo- 
tion to  the  court,  based  upcm  the  facts  stated,  the 
argument  of  the  cas(»  would  have  been  suspended, 
and  Broaddus  might  have  been  sworn  as  a  wit- 
ness, and  would  have  been  allowed  lo  give  evi- 
dence to  the  jury  before  their  retirement.     But 


182  LIABILITY    OF    DRUGGIST. 

although  the  witness  was  present,  and  defendants 
knew  what  he  w^oiild  prove  before  the  case  had 
been  given  to  the  jury,  they  did  not  offer  to  intro- 
duce him :  Higden  v.  Higden,  2  A.  K.  Marsh.  42, 
43.  Second,  because  the  defendants,  from  the 
facts  in  the  record,  are  convicted  of  negligence  in 
respect  to  their  preparation  of  their  defense.  It 
appears  that  at  the  term  preceding  that  during 
which  the  trial  took  place  the  cause  had  been  fully 
investigated  before  a  jury,  and  the  evidence 
heard,  but  the  jury  failing  to  agree,  there  was  a 
mistrial.  The  same  evidence  for  the  plaintiff  was 
no  doubt  then  given  to  the  jury  upon  which  he 
relied  in  the  first  trial;  and  the  defendants  had 
ample  time,  by  reasonable  inquiry,  to  have  pro- 
cured witnesses  to  establish  the  fact  of  the  im- 
portance of  which  they  could  not  have  been  igno- 
rant, if  it  could  have  been  done,  to  wit,  that  the 
ill  health  of  the  plaintiff  had  been  of  long  stand- 
ing and  not  of  recent  origin, 

"As  bearing  upon  the  question  of  the  amount 
of  damages  to  be  given  by  the  jury,  the  plaintiff 
on  the  final  trial,  and,  as  is  supposed,  at  the  pre- 
vious mistrial,  introduced  proof  to  the  effect  that 
his  general  health  was  good;  the  defendants 
could  and  should,  therefore,  by  the  exercise  of 
due  and  proper  diligence,  have  procured  counter- 
vailing evidence,  if  the  fact  existed,  to  show  that 
plaintiff's  bad  health  had  previously  existed ;  and 
that  it  was  not,  therefore,  caused  by  the  drugs 


PHARMACAL    JURISPRUDENCE.  183 

prepared  for  liim  by  them  or  tlieir  elerk.  The 
present  ill  health  of  the  plaintiff,  and  its  true 
cause,  was  the  main  point  of  fact  in  issue  and 
contested  before  the  jury;  and  the  defendants 
stated  the  case  upon  their  preparation,  as 
made,  and  cannot  be  indulged  with  a  new  trial 
because  they  may  have  ascertained  during  the 
trial  that  they  could  have  strengthened  their 
proof  upon  the  issue  in  question,  and  especially 
when  their  witness  was  present  before  the  argu- 
ment to  the  jury  was  closed,  and  they  might  have 
had  the  benefit  of  his  testimony  upon  application 
to  the  court :  Chambers  v.  Chambers  Adm'r,  2 
A.  K.  Marsh.  349 ;  Wells  v.  Phelps,  4  Bibb.  563. 
"The  affidavit  of  Dr.  Wise  does  not  give  any 
material  streng-th  to  the  demand  for  a  new  trial. 
He  merely  states  that  he  had  visited  the  plaintiff 
professionally  since  he  had  taken  the  compound 
prepared  for  him  at  the  drug  store  of  the  defend- 
ants, and  that  his  -opinion  was  that  plaintiff's 
disease  was  an  affection  of  the  mucous  membrane 
of  the  stomach  and  bowels,  and  not  connected 
with  the  kidneys  and  bladder,  or  urinary  organs. 
It  is  not  perceived  how  Dr.  Wise's  statement 
could  have  produced  a  different  verdict  of  the 
jury  necessarily;  for  the  disease  attributed  to  the 
plaintiff  l>y  Dr.  Wise  may  well  have  been  pro- 
duced by  the  cantharides  taken  by  him.  The 
proof  in  the  cause  of  its  effects,  and  generally  of 
the  symptoms  and  effects  exhibited  by  the  plain- 


184  LIABILITY    OF    DRUGGIST. 

tiff,  as  eouseqiieut  \\\)(m  the  dose  administered  to 
him,  would  make  the  coneliision  reasonable  that 
his  disease  as  described  by  Dr.  Wise,  was  thereby 
produced. 

"The  defendants  have  not  shown  that  Dr. 
Wise's  testimony,  had  it  gone  to  the  jury  upon 
the  trial,  either  could  or  ought  to  have  induced 
the  jury  to  have  rendered  a  more  favorable  ver- 
dict for  the  defendants:  Barrett  v.  Belshe,  4 
Bibb.,  349.  So  far,  therefore,  as  the  motion  for  a 
new  trial  was  predicated  upon  the  affidavits  of 
Broaddus  and  Wise,  and  the  accompanying  af- 
iidavits  of  the  defendants,  it  could  not  liave  l)een 
properly  sustained. 

"Tlie  next  question  presented  is,  that  the  Court 
should  have  sustained  the  motion  for  a  new  trial, 
because  the  damages  are  excessive. 

"There  is  no  fixed  and  certain  criterion  of 
damages  for  personal  injuries,  similar  to  those 
sustained  by  the  plaintiff  in  this  action.  The 
question  as  to  their  amount  is  within  the  sound 
and  reasonable'  discretion  of  the  jury.  The  dam- 
ages given  may  be  more  or  less  exemplary,  or 
otlierwise,  as  the  circumstances  of  aggravation  or 
extenuation  characterizing  each  particular  case 
may  reasonably  require. 

"There  is  a  class  of  personal  injuries,  such  as 
slander,  libel,  malicious  prosecution,  and  includ- 
ing injuries  to  a  person's  health,  business,  and 
property,  caused  by  indirect  means,  unattended 


PHARMACAI.    TrRisruroENCE.  185 

with  force,  aud  for  redress  of  wliich  the  remedy  is 
by  au  action  upon  tlie  case,  and  not  hy  tlie  action 
of  trespass,  for  wliidi  a  jnry  may  give  exeniplai'y 
damages,  as  well  where  the  action  is  in  case  as 
when  it  is  in  trespass;  and  whether  exemplary 
damages  shonld  or  slnmld  not  he  given  does  not 
depend  ujDon  the  form  of  action  so  mnch  as  upon 
the  nature  and  extent  of  the  injury  done,  and  the 
manner  in  which  it  was  inflicted,  whether  by 
negligence,  wantonness,  or  Avith  or  without  mal- 
ice: Merills  v.  Tariff  Manufacturing  Co.,  10 
Conn.,  388  (27  Am.  Dec.  ('.82,  and  notes)  ;  Linsley 
v.  Bushnell,  15  Conn.  235,  38  Am.  Dec.  79;  Mc- 
Lane  v.  Sharpe,  2  Harr.  (Del.)  181. 

"In  the  present  ease  the  damages  given  by  the 
jury  cannot  be  regarded  as  so  excessive  as  to 
authorize  this  court  to  reverse  the  judgment  on 
that  ground.  From  evidence  in  the  cause,  the 
jury  had  the  opportunity  and  the  right  to  decide 
the  question  of  fact  as  to  the  extent  of  the  injury 
done  to  the  plaintiff's  health,  and  if  the  injury 
was  considerable,  protracted,  or  permanent,  the 
amount  of  the  damages  found  by  them  was,  if 
even  sufficient,  not  excessive,  and  the  verdict  and 
judgment  ought  not,  on  that  ground,  to  be  dis- 
turbed. 

"But  it  is  urged  that  tlic  circuit  judge  im- 
properly instruct(Ml  the  jury  u])on  the  law  of  the 
case.  T"^pon  motion  of  the  attorney  for  the  ])lain- 
liff,    tlic  conrl    ii'avc   tlic    following   instruction: 


186  LIABILITY    OF    DRUGGIST. 

No.  1.  'If  the  jury  believe  from  the  evidence  that 
the  defendants  Fleet  and  Seniple,  were  the  pro- 
prietors of  the  drug  store  in  the  city  of  Covington 
at  which  the  prescription,  alluded  to  in  the  evi- 
dence, made  for  tlie  ])laintiff  hy  Dr.  Whitehouse, 
was  compounded,  and  that  said  prescription,  as 
put  up  at  said  drug  store,  contained  Spanish 
flies,  or  cantharides,  and  that  the  plaintiff,  in 
consequence  of  taking  a  part  of  it,  was  made  sick 
or  injured  thereby,  they  ought  to  find  for  the 
plaintiff,  even  although  they  may  believe  that 
defendants  Avere  ignorant  of  the  fact  that  said 
prescription  did  contain  said  ingredient.'  Al- 
though the  words  of  this  instruction  are  injudi- 
ciously selected  and  arranged,  yet,  if  its  meaning 
is  not  misapprehended,  it  embraces  in  its  terms 
a  proposition  of  law  pertinent  to  the  case  and  ap- 
plicable to  the  facts  presented  to  the  jury  by  the 
evidence.  Of  course  the  attorney  who  wrote  the 
instruction,  and  the  judge  who  gave  it,  in  using 
the  expression  as  to  the  'prescription  containing 
Spanish  flies,'  and  as  to  the  plaintiff's  having 
taken  a  portion  of  the  prescription,  etc.,  have 
reference  to  the  mixture  compounded  at  the  drug- 
store, and  not  to  the  written  prescription  of  the 
physician,  intended  as  a  direction  to  the  drug- 
gists as  to  the  drugs  to  be  compounded. 

"If  the  plaintiff  sent  a  prescription  to  the  de- 
fendants' drug  store  containing  directions  that 
snakeroot  and  Peruvian  bark  in  certain  quanti- 


\  PHARMACAI.    JURISPRUDENCE.  187 

\ 

ties  should  be  furnislied,  jivoiind  into  powder, 
and  mixed;  tlieu,  if  the  «h'feii<hiuts,  or  any  em- 
ployee of  their  dru<>-  store,  in  tilling  such  prescrij)- 
tion,  whether  ignorantly  or  h\  design,  whether 
with  or  without  the  knowledge  of  the  defendants, 
they,  being  proprietors,  did  intermix  the  ])oison- 
ous  drug  oantharides,  or  S])anish  tlies,  with  the 
bark  and  snakeroot,  and  if,  in  taking  this  prepa- 
ration or  mixture  as  medicine,  the  plaintiff  was 
injured,  the  defendants,  being  owners  of  the  drug 
store,  are  legally  responsible  in  damages  to  the 
plaintiff  for  the  accident,  if  it  was  one,  and  for 
the  outrage,  if  it  A\as  designed. 

''It  is  a  well  established  rule  and  principle  of 
law,  that  the  vender  of  provisions  for  domestic 
use  is  bound  to  know  that  they  are  sound  and 
wholesome,  at  his  peril :  Van  Bracklin  v.  Fonda, 
12  Johns.  408  (7  Am.  Dec.  339).  It  is  a  sound 
and  elementary  principle  of  law,  that  in  con- 
tracts for  the  sale  of  provisions,  the  party  by  im- 
plication, who  sells  them  undertakes  that  they 
are  sound  and  wholesome :  3  Bla.  Com.  165. 

"In  3  Bla.  Com.,  by  Chitty,  91,  it  is  laid  down 
in  general  terms:  'Injuries  affecting  a  man's 
health  are  where,  by  any  unwholesome  practices 
of  another,  a  man  sustains  any  apparent  damage 
in  his  vigor  or  constitution,  as  by  selling  him  bad 
provisions  or  wine,  by  the  exercise  of  a  noisome 
trade,  or  by  the  neglect  or  unskilful  management 
of  a  physician,  or  apothecary — these  are  wrongs 


188  LIABILITY    OF    DRUGGIST. 

or  injuries  iiiiacoompanied  by  force  for  wlncli 
there  is  a  remedy  in  daniaii'es  by  a  special  action 
on  the  case.' 

"Now,  if  a  man  who  sells  fruit,  \yines,  and  pro- 
visions is  bonnd  at  his  peril  that  what  he  sells  for 
the  consumption  of  others  shall  be  good  and 
wholesome,  it  may  be  asked  emphatically,  is 
there  any  sound  reason  why  this  conservatiye 
principle  of  the  law  should  not  apply  with  eipial 
if  not  Avith  greater  force  to  vendors  of  drags 
from  a  drug  store,  containing,  as  from  usage  may 
be  presumed,  a  great  variety  of  vegetable  and 
mineral  substances  of  poisonous  properties,  which 
if  taken  as  medicine  will  destroy  health  and  life, 
and  the  appearance  and  qualities  of  which  are 
known  to  but  few,  except  they  be  chemists,  dnig- 
gists,  or  physicians. 

''The  purchasers  of  wines  and  provisions,  by 
sight,  smell,  and  taste,  may  be  able,  without  in- 
curring any  material  injury,  to  detect  their  bad 
and  unwholesome  qualities ;  but  many  are  wholly 
unable,  by  the  taste  or  appearance  of  many  drugs, 
to  distinguish  those  which  are  poisonous  from 
others  which  are  innoxious,  so  close  is  their  re- 
semblance to  each  other;  purchasers  have,  there- 
fore, to  trust  the  druggist.  It  is  upon  his  skill 
and  prudence  they  must  rely.  It  is  therefore  in- 
cumbent upon  him  that  he  understands  his  busi- 
ness. It  is  his  duty  to  know  the  properties  of 
his  drugs,  and  to  be  able  to  distingnisli  tliem 


rilARMACAl,    JURISPRUDENCK.  189 

from  each  other.  It  is  his  duty  so  to  ([iialifv  him- 
self, or  to  emijloy  those  that  are  so  (]ualifie{l,  to 
attend  to  the  business  of  conipoundiui;-  and  vend- 
ing- medicines  and  drugs,  as  tliat  one  drug  may 
not  be  sold  for  another;  and  so  that  when  a  pre- 
scription is  presented  to  be  made  up,  the  proper 
medicines,  and  none  other,  be  used  in  mixing  and 
compounding  it.  As  applicable  to  the  owners  of 
drug  stores,  a  person  engaged  in  vending  drugs 
and  medicines  by  retail,  the  legal  maxim  should 
be  reversed.  Instead  of  'caveat  emptor,'  it 
should  be  'caveat  venditor.'  That  is  to  say,  let 
him  be  certain  that  he  does  not  sell  to  a  pur- 
chaser or  send  to  a  patient  one  drug  for  another, 
as  arsenic  for  calomel,  cantharides  for  or  mixed 
with  snakeroot  or  Peruvian  bark,  or  even  one 
innocent  drug,  calculated  to  produce  a  certain 
effect,  in  place  of  anotlun'  sent  for  and  designed 
to  produce  a  different  effect.  If  he  does  these 
things,  he  cannot-  escape  civil  responsibility, 
upon  the  alleged  pretext  that  it  was  an  accidental 
or  an  innocent  mistake;  that  he  liad  been  very 
careful  and  particular,  and  had  used  extraordi- 
nary care  and  diligence  in  preparing  or  com- 
pounding tlie  medicines  as  required,  etc.;  such 
excuses  will  not  avail  him,  and  he  will  be  liable, 
at  the  suit  of  tbe  ])arty  injured,  for  damages  at 
the  discretion  of  a  jury.' 

1  Hanford   v.    Payne,    11    Busli.   380;   Tessymond's  Case,    1 
Lewin's  Crown  Cases,  page  169. 


190  LIABILITY    OF    DRUGGIST. 

The  defendants'  attorney  moved  the  court  to 
instruct  the  jury  as  follows :  1.  If  from  the  cah- 
dence  the  jury  believe  that  the  defendants,  in 
preparing  the  prescription,  used  due  and  reason- 
able skill,  care,  and  diligence,  they  must  find  for 
defendants.  2.  If  from  the  evidence  the  jury 
believe  that  the  defendants,  in  putting  up  the 
prescription,  used  extraordinary  or  unusual  care, 
they  must  find  for  the  defendants.  These  in- 
structions were  not  given  but  properly  refused 
by  the  court.  The  rule  as  to  the  degree  of  care 
and  diligence  necessary  to  be  used  in  certain 
cases  to  exempt  a  party  from  liability,  and  as  to 
the  extent  or  degree  of  negligence  necessary,  to 
devolve  civil  responsibility  upon  the  party  guilty 
thereof,  do  not  apply  to  the  present  and  similar 
cases.  It  is  absurd  to  speak  of  degrees  of  dili- 
gence and  of  negligence  as  excusing  or  not  ex- 
cusing, or  as  settling  the  question  of  liability  or 
no  liability,  in  a  case  where  a  vendor  of  drugs, 
being  required  to  compound  innocent  medicines, 
runs  them  through  a  mill  in  which  he  kncAV  a 
poisonous  drug  had  shortly  before  been  ground. 
If  mistake  or  accident  would  excuse  the  sending 
of  a  medicine  different  from  that  applied  for, 
which  we  do  not  admit  and  cannot  readily  con- 
ceive, there  could  have  been  neither  mistake  nor 
accident  in  this  case,  because  the  fact  of  the  pre- 
vious use  of  the  mill  was  known  to  the  vendors, 
and  they  are  absolutely  responsible  for  conse- 


or 
PHARMACAI.     URlsrUUDENCE.  191 

(]noii('('s  which  that  kiioAvltMliie  enabled  them  and 
made  it  their  dnty  to  avoid.  Even  accidents  or 
mistakes  shonld  not  occnr  in  a  business  of  this 
nature,  and  they  cannot  ordinarily  occur  without 
there  has  been  such  a  degree  of  culpable,  if  not 
wanton  and  criminal,  carelessness  and  neglect 
as  must  devolve  ui)on  the  party  unavoidable  and 
commensurate  responsibility.  AVe  were  asked  by 
the  attorneys  in  their  argument,  with  some  em- 
phasis, if  druggists  are  to  be,  in  legal  estimation, 
regarded  as  insurers.'  The  answer  is  that  we 
see  no  good  reason  why  a  vendor  of  drugs  should, 
in  his  business,  be  entitled  to  a  relaxation  of  the 
rule  which  applies  to  vendors  of  provisions — 
which  is  that  the  vendor  undertakes  and  insures 
that  the  article  is  wholesome.  Sound  public  pol- 
icy in  relation  to  the  preservation  of  the  health 
and  even  of  the  lives  of  the  people  would  seem  to 
require  that  this  rule  should  have  a  rigid  and  in- 
flexible application  to- cases  similar  to  the  one 
under  consideration. 

"As  the  responsibility  of  the  defendants  in  this 
case  does  not  depend  upon  the  degree  of  care  or 
diligence  or  negligence  used  by  them,  but  upon 
the  naked  fact  that  when  re(iuested  to  compound 
a  merlicine  for  plaintiff,  to  be  composed  alone  of 
snakeroot  and  Peruvian  l>ark,  the  preparation 
sent  to  the  plaintiif  contained  also  the  poisonous 
drug  cantharides,  which  had  been  recently  ground 
in  the  same  mill,  the  taking  of  Avhich  caused  him 


192  LIABILITY    OF    DRUGGIST. 

great  pain,  siiffering-,  and  sickness,  if  it  has  not 
permanently  injnred  his  health,  the  instructions 
asked  by  the  defendants  were  i^roperly  refused. 

"The  instruction  upon  the  subject  of  damages, 
given  by  the  court  in  lieu  of  the  one  asked  by 
plaintiff's  attorney,  though  framed  and  ex- 
pressed in  language  not  so  well  chosen  and 
adapted  to  present  the  proposition  of  law  therein 
intended  to  be  set  forth  as  other  language  would 
liave  been,  yet,  as  understood,  the  instruction  is 
in  substantial  conformity  to  the  views  of  this 
court  as  expressed  in  this  opinion. 

Wherefore  the  judgment  of  the  Circuit  Court 
is  affirmed.'- 

In  the  foregoing  opinion,  the  court  says  it  is 
absurd  to  speak  of  degrees  of  negligence  in  a  case 
like  the  one  under  consideration.  The  failure  to 
clean  the  mill  in  which  the  Spanish  flies  had  been 
ground,  though  it  was  known  that  it  might  ])e 
needed  at  any  moment  to  grind  other  drugs,  was, 
manifestly,  such  gross  negligence  on  the  part  of 
defendants,  that  it  offers  no  room  for  the  consid- 
eration of  degrees. 

The  druggist  or  pharmacist  is  required  to  pos 
sess  and  use  reasonable  or  ordinary  knowledge, 
skill,  and  care  in  the  practice  of  h^"s  profession. 
But  it  must  be  borne  in  mind  that  the  term 
"ordinary,"  when  used  in  this  connection,  may 
express  the  widest  possible  meaning,  and  that  its 
force  varies  with  the  degree  of  risk  involved. 


PHARMACAI,    JURISPRUDENCE.  193 

Fn  the  ronipoTiiidiiiii-  or  hniulliiiii-  of  drills  that 
are  dangerous  to  life  or  health,  "ordinary"  rare 
means  nothino:  less  than  the  utmost  care;  and  the 
(miission  to  employ  any  necessary  ])re<'anli()n- 
ary  measure,  such  as  that  of  cleaning  a  mill  after 
grinding  Spanish  flies  in  it,  amounts  to  gross 
negligence. 

In  this  case  the  facts  of  negligence  are  so  ag- 
grayated  in  their  nature,  that  in  applying  the 
principles  of  law  to  the  responsibility  of  the  de- 
fendants, the  court  seems  to  haye  stated  it  a 
little  too  strong  against  the  druggist  in  general. 
The  rule  that  is  here  inyoked  as  goyerning  the 
liability  of  yendors  of  proyisions,  that  is,  that 
the  yendor  "undertakes  and  insures  that  the  ar- 
ticle is  wholesome,"  is  certainly  of  limited  ap- 
plication in  this  age  and  country,  except  so  far 
as  pertains  to  the  recoyery  of  the  purchase  price 
of  the  article  sold.  Beyond  this  responsibility 
for  the  price  of  the  gt)ods.  Aye  belieye  that  the 
liability  of  the  yendor  of  proyisions  for  selling 
an  unwholesome  article,  as  the  law  now  stands, 
would  inyolye  in  its  determination  the  question 
of  negligence  as  an  important  factor. 

Certainly,  the  law  does  not  make  the  druggisi 
an  insurer,  and  questions  of  knowledge,  skill, 
and  care  are  fundamental  in  determining  his  li- 
ability for  mistakes.  The  following  extract  from 
an  opini(m  submitted  by  Judge  Cooley,  in  the 
Michigan  case  of  Krown  y.   Marshall,  -17  Mich., 


194  LIABILITY    OF    DRUGGIST. 

576,  41  Am.  Kep.  728,  11  N.  W.  392,  we  believe 
to  be  absoluteh'  soimd  on  this  point :  '"The  ques- 
tion is  whether  the  delivery  at  a  drug  store  of  a 
deleterious  drug  to  one  who  calls  for  one  that  is 
harmless,  and  a  damage  resulting  therefrom,  of 
themselves,  give  a  right  of  action,  even  though 
there  may  have  been  no  intentional  wrong  and 
the  jury  may  believe  there  is  no  negligence.  That 
such  an  error  might  occur  without  fault  on  the 
part  of  the  druggist  or  his  clerk,  is  readily  sup- 
posable.  He  might  have  bought  his  drugs  from  a 
reputable  dealer,  in  whose  warehouse  they  have 
been  tampered  with  for  the  purpose  of  mischief. 

It  is  easy  to  suggest  accidents  after  they  come 
to  his  own  possession,  or  wrongs  by  others,  of 
which  he  would  be  ignorant  and  against  which 
a  high  degree  of  care  would  not  give  perfect  pro- 
tection. But  how  misfortune  occurs  is  unim- 
portant if,  under  all  circumstances,  the  fact  of 
occurrence  is  attributable  to  him  as  a  legal 
fault.  The  case  is  one  in  which  a  high  degree  of 
care  may  be  required.  *  *  *  It  is  proper 
and  reasonable  that  the  care  required  shall  b.e 
proportionate  to  the  damages  involved.  But  we 
do  not  find  that  the  authorities  have  gone  so  far 
as  to  dispense  Avith  actual  negligence  as  a  neces- 
sary element  in  the  liability  when  a  mistake  has 
occurred." 

In  the  case  of  Thos.  J.  Norton,  et  al.,  v.  An- 
drew B.  Booth,  34  La.  Ann.  page  913,  the  plain- 


PHARMACAI.    irRISPRrOFNCE.  195 

tiff  sues  tlu'  (lefeiulaiit  to  recover  the  sum  of  ten 
thonsaiul  dollars  as  damages,  for  having;  caused 
the  death  of  a  person  hy  his  neiilioent  error.  The 
plaintiffs  allege  "that  their  daughter,  Eleanor, 
was,  in  September,  1S78,  the  minor  wife  of  G. 
W.  Norton,  and  then  in  a  state  of  advanced  preg- 
nancy; that,  owing-  to  her  condition,  she  needed 
and  sent  for  a  dose  of  epsom  salts  at  defendant's 
store.  Avhere  drugs  and  medicines  are  sold;  that, 
through  negligence,  carelessness  and  want  of 
skill,  he  sold  and  delivered,  being-  paid  therefor, 
instead  of  said  salts,  a  dose  of  sulphate  of  zinc, 
a  deadly  poison;  that  this  medicine  was  admin- 
istered, and  caused  first,  the  death  and  bringing 
forth  of  the  child  their  daughter  was  pregnant 
with,  and,  second,  the  death  of  the  mother  her- 
self, after  endurance  of  lasting,  terrible  and  ex- 
cruciating pains." 

In  the  opinion  rendered  in  this  case.  Chief 
Justice  Bermudez  sa^s :  ^'In  the  discharge  of 
their  functions,  druggists  and  apothecaries,  per- 
sons dealing  in  drugs  and  medicines,  should  be 
required  not  only  to  be  skilful,  but  also  exceed- 
ingly cautious  and  prudent,  in  view  of  the  ter- 
rific consequences  which  may  attend,  as  they  have 
not  infrequently  in  the  past,  the  least  inatten- 
tion on  their  part.  Cooley  on  Torts,  pp.  75,  76, 
048-9.  All  persons  who  deal  with  deadly  poisons 
are  held  to  a  strict  accountaI)ilily  for  tluMr  use. 
The  highest  degree  of  caic  known  among  i>racti- 


196  LIABILITY    OF    DRUGGIST. 

cal  men  iiiii^^t  be  used  to  ])revent  injury  from  the 
use  of  such  poisons.^  A  druggist  is  undoubtedly 
lield  to  a  special  degree  of  responsibility,  for  the 
( rr(meous  use  of  jxtisons,  coiTesponding  with  his 
superior  kn()^^iedg('  i\\'  tlie  business.  Thomas  v. 
Wiiieliester,  (>  X.  Y.,  .'>!I7,  Td  Am.  Dec.  455  and 
notes;  Fleet  v.  lIollenkem]»,  18  B.  Mon.  219, 
56  Am.  Dec.  5(13;  Sherman  and  Kedfield  on  Neg- 
ligence, 592." 

1  Peters  v.  Johnson,  41  S.  E.  190,  50  W.  Va.  644,  57  L.  R.  A. 
428,  88  Am.  St.  Rep.  909  and  notes;  McVeigh  v.  Gentry,  76 
N.  Y.  Supp.  535,  72  App.  Div.  598. 


PHARMACAL    JU RISPRU DEXCE.  197 

CHAPTER  XI. 

LiAP.iLi'L'Y    Fou   Ekkor   IN    Prki'Auin(;    PuKsruir- 

TIONS. 

We  are  now  to  consider  tlie  work  of  the  drug- 
gist in  his  more  scientific  character.  In  other 
words,  it  is  the  pliarmacist  or  slcilled  man  of 
science  whose  lejial  responsihilitics  claim  our  at- 
tention. 

In  the  chapter  of  this  book  that  treats  of  the 
application  of  tlie  principles  of  contracts,  it  is 
explained  that  the  pharmacist  is,  in  the  eje  of  the 
law,  nnder  an  implied  contract  with  every  per- 
son with  wliom  he  deals  professionally,  that,  in 
rendering-  to  him  his  professional  services,  he  will 
nse  ordinary  knowledge,  skill,  and  care.  In  the 
last  chapter  we  called  attention  to  the  fact  that 
the  meaning  of  the  word  "ordinary"  here,  as  ap- 
plied to  care,  varies  with  the  degree  of  risk 
im'olyed,  and  that  it  may  mean  the  highest  pos- 
sible degree  of  care.  It  mnst  be  remembered, 
also,  that  the  same  word,  in  its  application  here 
to  knowledge  and  skill,  is  to  be  understood  in  the 
light  of  science  and  progress.  It  is  the  "ordi- 
nary" kno^yledge  and  skill  of  the  educated  and 
traintnl  pharmacist  that  is  here  re(inired  by  law, 
and  in  every  issue  involving  questions  as  to  the 
exercise  of  the  required  degree  of  knowledge  or 
skill,  it  is  necessary  for  the  court  to  consider  the 
degree  of  advancement  to  Avhich  tlie  science  of 


198  LIABILITY    FOR    ERROR. 

pharmacy  lia.s  attained,  at  the  time  that  the 
cause  of  action  arises. 

The  legal  history  of  the  practice  of  pharmacy 
discloses  the  fact,  that  many  serious  injuries,  and 
occasional  deaths,  iiave  occurred  through  errors 
in  compounding  the  jn'cscriptions  of  pliysicians. 

In  a  Louisiana  case,  entitled  William  McCub- 
l)in,  Tutor,  v.  Samuel  Hastinos.  reported  in  27 
La.  Ann.  page  715,  are  found  the  gruesome  rec- 
ords of  one  of  these  mistakes.  We  here  present 
the  facts  of  the  case  as  reviewed  in  the  opinion  of 
the  court. 

''On  Monday,  the  twenty-sixth  of  August,  18G7, 
the  wife  of  William  ]McCubbin  was  attacked  with 
j^ellow  fever.  A  physician  Avas  immediately 
called  in,  and  the  patient  was  placed  under  the 
charge  of  a  nurse. 

''On  the  Wednesday  following  she  was  quiet. 
About  one  o'clock  of  that  day  the  physician  or- 
dered her  an  enema.  \ye  are  satisfied  from  the 
evidence  that  the  enema  as  ordered  was  to  have 
been  composed  as  folloAvs :  Sulphate  of  quinine 
thirty  grains,  mucilage  of  gum  Arabic  four 
ounces,  camphor  water  four  ounces,  Batley's  sed- 
ative solution,  thirty  or  sixty  drops,  to  be  ad- 
ministered one  half  as  soon  as  received,  the 
other  in  an  hour  after.  We  ascertain  the  com- 
ponent parts  of  the  prescription  from  the  testi- 
mony of  the  physician,  as  the  prescription  itself 
could  not  be  found  in  the  defendant's  shop  where 


PHARNfACAI.   JURIsrRrOENrE.  190 

it  should  lijivo  been  kept.  'IMic  ]>irs<Tii)li(>u  was 
ordered  by  (he  physician  to  be  «-onipo\iii(hMl  at 
the  (k^feudant's  sho}).  The  husband  of  the  de- 
ceased took  it  there,  lie  handed  it  to  an  em- 
ployee. After  it  was  eoniponnded  he  purehased 
an  injection  pipe,  paid  for  both,  and  left,  lie 
gave  them  to  the  mirse.  She  administered  a 
])ortion  of  it.  The  effect  se^ems  to  have  been  in- 
stantaneous. It  threw  the  unfortunate  woman 
into  spasms,  and  convulsions,  causing  her  to 
purge  and  vomit  at  the  same  time.  The  attend- 
ing phj'sician  >\as  immediately  sent  for.  He 
could  not  be  found,  and  reached  his  patient  late 
at  night.  He  did  all  that  his  science  allowed  him 
to  do  for  her  relief.  He  called  in  another  phy- 
sician. Their  efforts  were  fruitless.  Two  days 
after  the  patient  died. 

''This  suit  is  instituted  by  the  husband  of  the 
deceased  and  the  father  of  her  child,  a  minor, 
against  the  defendant  to  make  him  responsible 
in  damages  for  the  death  of  this  woman,  the  al- 
legation being  that  the  prescription  was  improp- 
erly compounded. 

"The  evidence  leaves  no  doubt  on  our  mind  that 
spirits  of  camphor  was  substituted  for  camphor 
water;  that  the  sufferings  of  the  woman,  which 
are  shown  to  have  been  intense,  were  caused  by 
this  mistake,  camphor  water  being  a  very  inno- 
cent preparation ;  spirits  of  camphor  being  a  de- 
coction  of   camphor  and   alcohol ;   and    that   it 


200  LIABILITY    FOR    ERROR. 

contributed  to  a  large  extent,  if  it  did  not  abso- 
lutely cause  the  death  of  the  patient. 

"The  prescription  was  not  compounded  bv  the 
defendant.  At  the  time  it  Avas  put  up  he  was 
not  in  the  city.  The  clerk  had  not  been  employed 
by  him.  His  services  had  been  engaged  by  his 
brother.  The  defendant  is  none  the  less  respon- 
sible for  his  acts.  The  employment  was  au- 
thorized, and  his  responsibility  for  the  acts  of  his 
employees  cannot  be  disputed. 

"The  case  was  twice  tried  before  a  jury  in  the 
Fifth  District  Court.  It  was  then,  by  consent, 
remanded  to  the  Fourth  District  Court,  and  sub- 
mitted to  the  judge  alone.  He  decided  in  favor  of 
the  defendant,  and  the  plaintiff  has  appealed." 

In  speaking  of  the  damages  claimed  on  behalf 
of  the  plaintiff  and  the  minor  child,  the  court 
says :  "His  damages,  if  he  is  entitled  to  any,  is 
the  amount  expended  by  him  for  medical  and 
other  services  subsequent  to  the  giving  of  the 
enema,  and  for  the  funeral  expenses. 

"The  right  to  damages  on  the  part  of  the  child 
is  that  which  he  inherits  from  his  mother. 

"The  defendant  filed  a  peremptory  exception  to 
plaintiff's  demand  on  the  ground  that  the  pe- 
tition disclosed  no  cause  of  action.  This  excep- 
tion was  filed  after  the  jury  had  been  empaneled. 
The  grounds  upon  which  it  rests  are,  first,  ^be- 
cause it  is  not  alleged  that  the  damage  com- 
plained of  was  suffered  through  the  fault  of  the 


PHAKMACAl. 


U'RIDKNCE.  '201 


(IcIViKhiul,  ;iii<l  it  is  ucccssMry  it  should  lie  ;il- 
leo-ed  to  be  the  (IcfeiuhniCs  raiilt  hd'orc  tli;it  i'-.u-i 
could  bo  proved/  ami  sccoiid,  'because  it  (tlie 
petition)  does  not  state  tliat  the  defendant,  as 
employer,  micht  have  prevented  the  act  which 
caused  the  damage,  and  did  not  do  it.'  The  ex- 
ception was  sustained,  but  the  plaintiff  was  al- 
lowed to  ame.id.  Plaintiff'  excepted  to  the  ruling 
of  the  court,  \\hi(]i  maintained  the  exception. 
Defendant  excepted  to  the  order  allowing  plain- 
tiff' to  amend.  Botli  rulings  were  correct.  The 
exception  was  a  peremptory  one  and  could  l)e 
])leaded  at  any  time  during  the  progress  of  the 
trial.  Amendments  are  always  allowed  in  the 
discretion  of  the  court. 

"After  the  amendment  was  made,  defendant 
then  pleaded  the  prescription  of  one  year.  The 
plea  was  properly  overruled.  The  demand  was 
made  within  the  year  of  the  alleged  tort.  The 
demand  is  the  test,juid  not  the  sufficiency  of  the 
alh^gations  which  support  it. 

''But  the  defendant  still  contends  that  the 
amended  petition  is  defective,  because  it  does 
not  allege  that  he  was  in  fault.  The  allegations 
are,  that  the  death  of  the  deceased  w^as  caused 
by  the  negligence  of  Ihe  defendant's  clerk,  and 
that  he,  the  defendant,  might  have  prevented  the 
act  com]dain«Ml  of,  Itut  did  not  do  so.  If  the  act 
whicli  caused  the  <lamage  was  done  by  the  de- 
fendant's clerk,  and  tlie  defendant  l)e  respousilile 


202  LIABILITY    FOR    ERROR. 

therefor,  aud  the  defendant  could  have  prevented 
it,  but  did  not,  then  clearly  it  was  by  the  fault  of 
the  defendant  that  the  damage  occurred,  and  the 
use  of  the  word  fault  Avas  not  a  necessary  alle- 
gation to  fix  the  responsibility  upon  him.  If  he 
could  have  prevented  the  act,  and  did  not,  he  was 
necessarily  in  fault. 

"On  the  trial  the  defendant  moved  to  strike  out 
the  second  and  third  causes  of  action  as  stated 
in  the  petition,  which  are :  Second,  'Also  as  tutor 
of  his  minor,  for  ten  thousand  dollars  damages, 
suffered  by  the  minor,  personally,  in  the  loss  and 
deprivation  of  the  care,  education,  assistance 
and  love  of  his  mother.' 

"Third,  'In  his  individual  capacity,  and  in  his 
own  behalf  for  five  thousand  dollars  damages,  for 
actual  expenses,  loss  of  the  assistance  and  ser- 
vices of  his  wife  in  business,  and  for  personal 
sufferings  in  mind  for  the  loss  of  his  wife,  all 
caused  by  said  criminal  mistake.' 

"The  judge  ordered  them  stricken  out.  As  re- 
gards the  second,  his  ruling  was  correct.  The 
action,  in  so  far  as  the  minor  is  concerned,  is  the 
right  of  action  which  his  mother  had  against  the 
defendant  for  the  suffering  which  was  caused  her 
l)y  the  defendant's  employee,  and  which  he  in- 
herited. He  has  no  claim  against  him  for  the 
loss  which  he  suffered  through  his  mother's  death. 
With  regard  to  the  thir<l  objection,  the  court 
erred.     Defendant  is  responsible  to  the  plaintiff 


rilAKMAl  Al.     HKlSTKlDKNCi;.  203 

for  all  till'  ex])eiise  mid  (laiiia.i;('  wliicli  he  sutVci'od 
subsequent  to  the  i^iviuo'  of  the  eueuia."  Pursuing' 
the  question  of  defendanfs  liability,  the  court 
sa  Ys : 

"The  first  objection  whieh  tlie  defendant 
raises  to  the  plaintiff's  demand  on  the  merits  is, 
that  the  certificate  of  death,  oiven  by  the  physi- 
cian, states  that  she  died  of  yidlow  fever,  and 
that  the  plaintiff  caused  it  to  l)e  ])id»lislied  in  the 
newspapers  that  she  died  of  yellow  fever. 

"In  so  far  as  the  certificate  was  concerned  that 
was  no  act  of  the  plaintiff's.  As  rei>ards  the  no- 
tice, she  mioht  have  died  of  yellow  fever  and  still 
her  death  from  that  disease  miiiht  have  been 
caused  by  the  enema.  If  a  pistol  had  been  fired 
into  some  fleshy  part  of  her  body  Avhile  she  was 
laborino-  under  an  attack  of  fever,  the  ball  itself 
mioht  not  have  produced  death,  but  the  shock  by 
ajjgTavatino;  the  fever  probably  avouUI.  T'^nder 
these  circumstances  she  jirobably  would  have 
died  of  yellow  fever,  but  her  deatli  would  have 
been  superinduced  by  the  shot.     So  in  this  case. 

"The  deceased  was  suffering  under  an  attack 
of  yellow  fever.  It  was  a  violent  attack.  Quiet 
and  repose  were  of  all  things  most  necessary  to 
her  safety.  She  was  dangerously  ill,  it  is  true. 
But  she  had  at  least  one  chance  for  her  life,  and 
the  injecting  of  the  violent  and  exciting  sub- 
stance (into  a  particularly  sensitive  ]>()i'li()ii  of 
the  body)  took,  in  our  opinion,  from  the  iint'or- 


204  LIABILITY    FOR    ERROR. 

tiinate  womau  the  one  ehaiiee  that  was  left  to  her. 
She  died,  it  is  true,  from  yellow  fever,  but  it 
was  the  enema  which  made  the  fever  result  fa- 
tally. 

"The  next  ground  of  defense  is,  that  defend- 
ant cannot  be  condemned,  unless  the  plaintiff 
proves  that  he  was  some  way  in  fault,  and  that  he 
really  might  have  prevented  the  act  which  caused 
the  damage.  In  one  sense  it  was  impossible  for 
him  to  have  prevented  the  calamity,  because  he 
was  not  in  the  city.  But,  if  a  master  is  onlj^  to  be 
held  responsible  for  the  act  of  his  servant  when 
he  might  have  prevented  the  act  and  did  not, 
there  would  be  no  responsibility  in  the  principal, 
except  for  such  acts  as  were  done  in  his  presence. 
If  this  were  the  law,  if  the  driver  of  a  carriage 
owned  by  the  keeper  of  a  public  stable,  wantonly 
ran  into  and  destroyed  the  carriage  of  another, 
the  owner  of  the  public  carriage  would  not  be 
held  responsible  for  the  damage  caused  by  his 
servant,  because  it  was  no  fault  of  his  that  the 
other  carriage  was  run  into. 

"If  a  man  is  run  over  by  a  careless  car  driver, 
the  company  in  whose  employ  the  driver  is,  can- 
not be  held  responsil)le,  because  it  was  not  the 
company's  fault.  But  we  know  that  this  has 
never  been  considered  law,  and  thai  where  in- 
juries have  occurred  as  the  result  of  carelessness 
on  the  part  of  employees  of  such  parties,  the  ])riii- 
cipals  have  been  made  to  refund   in  damages. 


PHARMACAI.    JURISPRUDENCE.  205 

He  further  attempts  to  exculpate  himself,  from 
the  fact  that  the  clerk  who  compounded  the  pre- 
scription was  reputed  to  be  a  competent  drug- 
gist. To  a  certain  extent  he  has  established  this : 
that  is  to  say,  he  has  produced  a  number  of  wit- 
nesses who  testify  in  that  direction.  But  there  is 
one  recommendation  which  he  did  not  have,  and 
that  was  a  diplonui.  It  is  not  pretended  that  he 
was  a  graduate  in  pharnuicy  from  any  medical 
institute. 

"It  may,  however,  be  assumed  that  he  was 
competent.  The  defencbmt's  liability  would  be 
none  the  less  certain.  The  defendant  is  himself 
represented  as  being  a  most  competent  druggist. 
If  he  had  made  the  mistake,  would  his  proficiency 
in  his  calling  shield  him?  Incompetency  and 
carelessness — and  such  mistakes  arise  from  one 
or  the  other  of  these  causes— result  in  the  same 
way.  Either  or  both  produce  suffering  and  some- 
times death.  And  ran  it  be  that  if  a  i)hysician 
should  prescribe  for  his  slightly  ailing  patient  a 
small  quantity  of  calomel  and  soda,  and  the 
druggist  were  to  substitute  arsenic  for  soda,  that 
he  could  shield  himself  from  the  consequences 
which  might  result,  by  saying,  if  the  prescription 
was  compounded  by  himself,  that  it  was  a  mis- 
take, and  if  the  act  of  his  servant,  that  he  could 
not  have  prevented  it?  The  law  does  not  place 
a  community  in  the  position  of  being  poisoned 
by  mistakes,  with  no  one  to  be  held  responsible 


206  LIABILITY    FOR    ERROR. 

therefor.  If  it  was  the  master  Avho  did  the 
wrong,  tlie  master  is  responsible.  If  it  was  his 
servant  who  did  it,  he  is  still  responsible,  for  the 
master  is  responsible  for  the  acts  of  his  servant 
when  done  in  the  course  of  his  usual  employment. 

"The  least  serious  defense  set  up  is,  that  the 
enema  did  the  patient  no  harm.  Many  physi- 
cians were  examined  upon  this  point,  and  counsel 
for  the  defendant,  in  the  very  able  brief  which 
he  furnished  us,  says:  'With  surprising  unani- 
mity, these  physicians,  every  one  of  whom  have 
had  large  experience  in  the  treatment  of  yellow 
fever,  declared  the  effect  would  have  been  bene- 
ficial rather  than  injurious.' 

"As  we  have  said  before,  ]Mrs.  ]McCubbin  was 
taken  ill  on  ^Monday,  the  twenty-sixth  of  August. 
On  the  Wednesday  following  the  enema  was  ad- 
ministered. I^p  to  this  time  the  patient  had  been 
quiet.  The  nurse  says  that,  turning  into  the 
third  day,  the  fever  began  to  abate  and  the  phy- 
sician said  he  found  her  much  better;  that  he  was 
going  to  order  a  mixture  that  would  act  like  a 
charm,  as  she  was  not  sweating  freely  enough. 
The  enema  came  and  this  is  how  the  nurse,  who 
administered  it,  described  the  effects :  'As  soon 
as  I  gave  it  to  her  she  commenced  to  complain; 
she  said,  'Oh,  nurse,  don't  give  me  any  nu)re,  for 
God's  sake!  It  will  kill  me.'  I  set  the  cup  down 
on  the  bed  and  called  ]McCubbin  (who  had  left 
the  rooui  at  his  wife's  request  when  the  nurse  was 


PHARMACAI.   JURISPRUDENCE.  207 

about  to  administer  tlio  enema)  and  told  him 
the  injection  made  her  very  ill.  It  made  her 
that  ill  it  threw  her  into  spasms.  She  eommeneed 
throwing  up  and  pnrgini;-  down,  and  wms  in  mreat 
agony,  but  got  easier  afterwards.' 

"McCubbin  swears  that,  when  he  got  upstairs, 
his  wife  was  straightened  out  and  almost  black 
in  the  face,  and  apparently  in  spasms  or  a  fit. 
He  says:  'I  put  my  hands  underneath  her  to 
raise  her  from  the  bed ;  she  worked  in  the  spasms 
about  three  minutes,  and  in  her  spasms  both 
purged  and  vomited  at  the  same  moment,  which 
seemed  to  give  her  some  ease.  'Oh,  my  God, 
Will,'  she  said,  'what  have  you  given  me?  I  am 
all  on  fire!  I  am  burning!'  and  so  she  kept  on. 
You  could  hear  her  until  ten  o'clock  at  night  a 
block  off,  and  she  had  never  made  a  moan  before." 

"The  attending  physician  was  sent  for  immedi- 
ately. It  was  a  season  of  calamity.  The  physi- 
cian was  in  full  prfictice,  and,  hurrying  as  he  was, 
from  patient  to  patient,  could  not  be  found.  Late 
in  the  night  he  came  of  his  own  accord.  Discov- 
ering her  condition,  he  immediately  denounced 
the  mistake  which  had  been  made;  said  to  sev- 
eral who  were  present,  and  at  varicms  times,  that 
the  injection  had  injured  her;  took  the  bottle 
himself  to  the  druggist  to  see  whether,  perchance, 
he  had  made  the  mistake  in  writing  out  the  for- 
mula, and  is  shown  to  have  said  that,  but  for  the 
injection,  his  patient  would  have  done  well.     He 


208  LIABILITY    FOR    ERROR. 

(lid  all  in  his  power  to  remedy  the  evil  which  had 
been  done.  Nothing  thut  was  tried  for  her  relief 
succeeded.  She  sank  liradually  from  the  time 
the  enema  Avas  administered  until  three  days 
afterward,  when  she  died. 

"When  scientific  gentlemen  undertake  to  tell 
us,  under  such  a  state  of  facts,  that  the  enema,  as 
administered,  was  a  benefit  to  the  patient  instead 
of  an  injury;  tliat  a  substance  as  powerful  as 
alcohol,  in  which  camphor,  a  violent  stimulant, 
lias  been  dissolved,  can  be  injected  into  one  of  the 
tenderest  parts  of  the  human  frame,  when  the 
patient  is  suffering  from  a  severe  attack  of  such 
a  disease  as  the  yellow  fever  is,  without  doing  any 
harm,  but,  on  the  contrary,  doing  good,  we  see  in 
our  mind's  eye  the  unfortunate  victim  upon 
whom  the  experiment  lias  been  tried,  as  she  is 
described  by  the  witnesses,  writliing  in  agony, 
dying,  dead,  and  we  say  that  that  dreadful  fact 
alone  destroys  all  th(Mr  theories;  and  we  think 
that  he  who,  by  himself  or  those  for  whose  acts 
he  is  responsible,  caused  this  agony,  not  to  say 
death,  should  be  made  to  answer  for  the  suffer- 
ing which  he  caused. 

"As  regards  the  damages,  the  plaintiff  has  not 
shown  what  he  expended,  and  therefore  we  can 
give  him  no  judgment.  As  to  the  minor  child, 
we  think  he  should  receive  twenty-five  hundred 
dollars. 


PHARMACAI,    JURISPRUDENCE.  209 

"It  is  tlK'i-cfoi'c  onU'ird,  a(ljii(l^«'(l  and  dccired 
that  the  jndtiineiit  of  the  district  eoiirt  be  void- 
ed, animHed  and  reversed,  and  it  is  now  ordered, 
adjudgetl  and  decreed  that  there  be  judgment  in 
favor  of  the  plaintiff,  William  MeCubbin,  in  his 
capacitv  as  tutor  to  his  minor  child,  William 
James  MeCubbin,  and  against  the  defendant,  in 
the  sum  of  twenty-five  hundred  dollars,  with 
legal  interest  from  judicial  demand,  and  costs  of 
suit  in  both  courts." 

''AVyly,  J.,  dissenting.  The  physicians  who 
testified  in  this  case  all  agreed  that  if  the  mis- 
take had  occurred  in  filling  the  prescription,  and 
spirits  of  camphor  instead  of  camphor  water  had 
been  used,  it  would  have  improved  the  prescrip- 
tion and  the  result  would  have  been  beneficial  in- 
stead of  injurious  to  the  patient.  The  opinion 
of  experts  is  evidence.  And  according  to  the 
evidence,  no  injury  resulted  from  the  alleged  mis- 
take of  defendant-8  clerk.  The  case  should  be 
decided  according  to  the  evidence  in  the  record, 
and  from  it,  it  appears  no  damage  was  done.  Be- 
sides, the  proof  fails  to  establish  with  legal  cer- 
tainty the  fact  that  a  mistake  occurred.  Both  a 
mistake  and  an  injury  must  be  shown  in  order 
to  recover.     I  dissent  in  this  case. 

"Kehearinu-  refused.'' 


210  LIABILITY    OF    MANUFACTURER. 

CHArTER  XII. 

Liability  of  Manufacturing  Phak:macists. 

In  dealing-  with  this  subject  the  same  method 
will  be  pursued  as  that  employed  in  the  last 
chapter.  The  law  herein  has  been  exhaustively 
presented  and  ably  discussed  in  the  leading  case, 
Thomas  v.  Winchester,  (5  N.  Y.  397;  also  re- 
ported in  Vol.  57  of  Am.  Dec,  455,  and  mono- 
graphic note. 

This  was  an  action  in  the  supreme  court  of  the 
State  of  New  York,  commenced  in  August,  1849, 
against  Winchester  and  Gilbert  to  recover  dam- 
ages on  account  of  injuries,  allegied  to  have  been 
sustained  by  INIrs.  Thomas,  from  the  effects  of  a 
quantity  of  extract  of  belladonna,  administered 
to  her  by  mistake  as  extract  of  dandelion. 

In  the  Court  of  Aj^peals,  Euggles,  Chief  Jus- 
tice, delivered  the  following  opinion,  in  which 
the  facts  of  the  case  are  set  out  with  sufficient 
fullness  to  form  a  basis  for  the  legal  reasoning 
of  the  distinguished  jurist. 

By  the  Court,  Ruggles,  C.  J.  "This  is  an  ac- 
tion brought  to  recover  damages  from  the  defend- 
ant for  negligently  putting  up,  labeling,  and  sell- 
ing as  and  for  ilic  cxlvacl  of  (hiii(h'li(m,  which  is 
a  sim])I('  and  harmless  medicine,  a  jar  of  the  ex- 
tract of  liclladonna,  whicli  is  a  deadly  poison;  by 
means  of  which  the  plaintiff,  Mary  Ann  Thomas, 
to  whom,  being  sick,  a  dose  of  dandelion  was 


niARMACAL   JITRISPRUDENCE.  211 

prescribed  by  a  pliysiciaii,  and  a  portion  of  the 
(•(Hitents  of  the  jar  was  administered  as  and  for 
tlie  extract  of  (bmdclion,  was  jireatly  injnred,  etc. 

The  facts  proved  wci'c  l>i'ietly  tliese:  Mrs. 
Thomas  beinii'  in  ill  licultli,  her  jdiysician  pre- 
scribed for  her  a  dose  of  (hiiKhdion.  Her  hus- 
band purchased  wliat  was  Ixdieved  to  be  the  med- 
icine prescribed,  at  the  store  of  Dr.  Foord,  a  phy- 
sician and  drugi;ist  in  Cazenovia,  Madison 
County,  where  the  plaintiffs  reside. 

A  small  quantity  of  the  medicine  tlius  pur- 
chased was  administered  to  Mrs.  Thomas,  on 
whom  it  produced  very  alarniin<>-  effects,  such  as 
coldness  of  the  surface  and  extremities,  feeble- 
ness of  circulation,  spasms  of  the  muscles,  giddi- 
ness of  the  head,  dilation  of  the  pupils  of  the 
eyes,  and  derangement  of  the  mind.  She  recov- 
ered, however,  after  some  time,  from  the  effects, 
although  for  a  short  time  her  life  was  thought  to 
be  in  great  danger.  The  medicine  administered 
was  belladonna,  and  not  dandelion. 

Tlie  jar  from  wliicli  it  was  taken  was  labeled 
'1-2  lb.  dandelion,  pr(^i)ared  by  A.  (Jilbert,  No. 
108  John  Street,  N.  Y.  jar  8  oz.' 

It  was  sold  for  and  Ixdieved  by  Dr.  Foord  to 
be  the  extract  of  dandelion,  as  labeled.  Dr. 
Foord  purchased  the  article  as  the  extract  of 
dandelion  from  James  S.  Aspinwall,  a  druggist 
at  New  York.  Aspinwall  bouglit  it  of  the  de- 
fendant as  extract  of  dandelion,  Itelieving  it  to  be 


212  LIABILITY    OF    MANUFACTURER. 

such.  The  defendant  was  engaged  at  108  John 
Street,  New  York,  in  the  manufacture  and  sale 
of  certain  vegetable  extracts  for  medicinal  pur- 
poses, and  in  the  purchase  and  sale  of  others. 
The  extracts  manufactured  by  him  were  put  up 
in  jars  for  sale,  and  those  which  he  purchased 
were  put  up  by  him  in  like  manner. 

The  jars  containing  extracts  manufactured  by 
himself  and  those  containing  extracts  purchased 
by  him  from  others  were  labeled  alike.  Both 
were  labeled  like  the  jar  in  question,  as  'pre- 
pared by  A.  Gilbert.'  Gilbert  was  a  person  em- 
ployed by  the  defendant  at  a  salary  as  an  assist- 
ant in  his  business.  The  jars  were  labeled  in 
Gilbert's  name  because  he  had  been  previously 
engaged  in  the  same  business  on  his  own  account 
at  No.  108  John  Street,  and  probably  because  Gil- 
bert's labels  rendered  the  articles  more  salable. 
The  extract  contained  in  the  jar  sold  to  Aspin- 
wall,  and  by  him  to  Foord,  was  not  manufactured 
by  the  defendant,  but  was  purchased  by  him 
from  another  manufacturer  or  dealer.  The  ex- 
tract of  dandelion  and  the  extract  of  belladonna 
resemble  each  other  in  color,  consistence,  smell 
and  taste;  but  may  on  careful  examination,  be 
distinguished  the  one  from  the  other  by  those 
who  are  well  accpiainted  with  these  articles. 

Gilbert's  labels  were  paid  for  by  Winchester 
and  used  in  his  business  with  his  knowledge  and 
assent. 


PHARNfACAL    J  URISPRUnENCE.  213 

The  defeiidaut's  coimsel  moved  for  a  nousuit 
ou  the  following-  grounds:  1.  That  the  action 
could  not  be  sustained,  as  the  defendant  was  the 
remote  vendor  of  the  article  in  question ;  and 
there  was  no  connecting  transaction  or  privity 
between  him  and  the  plaintiffs,  or  either  of  them. 
2.  That  the  action  sought  to  charge  the  defend- 
ant with  the  consequences  of  the  negligence  of 
Aspinwall  and  Foord.  3.  That  the  plaintiffs 
were  liable  to  and  chargeable  with  the  negligence 
of  Aspinwall  and  Foord,  and  therefore  could  not 
maintain  this  action.  4.  That  according  to  the 
testimony  Foord  was  chargeable  with  negligence, 
and  the  plaiutitfs  therefore  could  not  sustain  this 
suit  against  the  defendant;  if  they  could  sustain 
a  suit  at  all,  it  would  be  against  Foord  only.  5. 
That  this  suit  being  brought  for  the  benefit  of  the 
wife,  and  alleging  her  as  the  meritorious  cause  of 
action,  cannot  be  sustained.  6.  That  there  was 
not  sufficient  evi^lence  of  negligence  in  the  de- 
fendant to  go  to  the  jury. 

Tlie  judge  overruled  the  motion  for  a  nonsuit, 
and  the  defendant's  counsel  excepted. 

The  judge  among  other  things,  charged  the 
jury,  that  if  they  should  find  from  the  evidence 
that  either  Aspinwall  or  Foord  Avas  guilty  of 
negligence  in  vending  as  and  for  dandelion  the 
extract  taken  by  Mrs.  Thomas,  or  that  the  plain- 
tiff, Thomas,  or  those  who  administered  it  to 
Mrs.  Thomas,  were  chargeable  with  negligence  in 


214  LIABILITY    OF    MANUFACTURER. 

adiiiiiiistering  it,  the  plaintiffs  were  not  entitled 
to  recover;  but  if  they  were  free  from  negligence, 
and  if  the  defendant,  Winchester,  was  gnilty  of 
negligence  in  putting  up  and  vending  the  ex- 
tracts in  question,  the  plaintiffs  were  entitled  to 
recover,  provided  the  extract  administered  to 
Mrs.  Thomas  Avas  the  same  which  was  put  up 
by  the  defendant  and  sold  by  him  to  Aspinwall, 
and  by  Aspinwall  to  Foord.  That  if  they  should 
find  the  defendant  liable,  the  plaintiffs  in  this 
action  Avere  entitled  to  recover  damages  only  for 
the  personal  injury  and  suffering  of  the  wife,  and 
not  for  loss  of  service,  medical  treatment,  or  ex- 
pense to  the  husband,  and  the  recovery  should  be 
confined  to  the  actual  damages  suffered  by  the 
wife. 

The  case  was  properly  brought  in  the  name  of 
the  husband  and  wife  for  the  personal  injury  and 
suffering  of  the  wife;  and  the  case  was  left  to  the 
jury  with  the  proper  instructions  on  that  point : 
1  Oh.  PI.  02,  ed.  of  1828. 

The  case  depends  on  the  first  point  taken  by 
the  defendant  on  his  motion  for  a  nonsuit;  and 
the  question  is,  whether,  the  defendant  being  a 
remote  vendor  of  the  medicine,  and  there  being  no 
privity  or  connection  between  him  and  the  plain- 
tiffs, the  action  can  be  maintained. 

If  in  labeling  a  poisonous  drug  with  the  name 
of  a  harmless  medicine,  for  public  market,  no 
duty  was  violated  by  the  defendant  excepting 


riiAKMACAi.  jrKisrRrni-.Nrr:.  215 

that  which  he  owed  to  Asspinwall,  hi.s  immediate 
vendee,  in  virtue  of  his  contract  of  sale,  this  ac- 
tion cannot  be  maintained.  If  A.  bnihl  a  wa<!,on 
and  sell  it  to  B.,  wiio  sells  it  to  O.,  and  ("!.  hires  it 
to  D.,  who,  in  consequence  of  the  <;ross  ne<;li- 
g-ence  of  A.  in  building  the  wagon,  is  overturned 
and  injured,  D.  cannot  recover  damages  against 
A.,  the  builder.  A's  obligation  to  build  the 
wagon  faithfully  arises  solely  out  of  his  contract 
with  H. ;  the  public  have  nothing  to  do  with  it. 
.Misfortunes  to  third  persons,  not  parties  to  the 
contract,  would  not  be  a  natural  and  necessary 
(•(msecpience  of  the  builder's  negligence;  and  such 
negligence  is  not  an  act  imminently  dangerous  to 
human  life. 

So,  for  the  same  reason,  if  a  horse  be  defect- 
ively shod  by  a  smith,  and  a  person  hiring  the 
horse  from  the  owner  is  thrown  out  and  injured 
in  consequence  of  the  smith's  negligence  in  shoe- 
ing, the  smith  is  not  liable  for  the  injury.  The 
smith's  duty  in  such  case  grows  exclusively  out 
of  his  contract  with  the  owner  of  the  horse;  it 
was  a  duty  which  the  smith  owed  to  him  alone, 
and  to  no  one  else. 

And  although  the  injury  to  the  rider  may  have 
happened  in  consequence  of  the  negligence  of  the 
smith,  the  latter  was  not  bound,  either  by  his 
contract  or  by  any  consideration  of  public  policy 
or  safety,  to  respond  for  his  breach  of  duty  to  any 
one  except  the  ])ers()u  he  contracted  with. 


216  LIABILITY    OF    MANUFACTURER. 

This  was  the  ground  on  which  the  case  of  Win- 
terbottom  v.  Wright,  10  Mee.  &  W.  109,  11  L.  J. 
Exch.  415  was  decided.  A.  contracted  with  the 
postmaster-general  to  provide  a  coach  to  convex' 
the  mail-bags  along  a  certain  line  of  road,  and  B. 
and  others  also  contracted  to  horse  the  coach 
along  the  same  line.  B.  and  his  co-contractors 
hired  C,  who  was  the  plaintiff,  to  drive  the  coach. 
The  coach,  in  consequence  of  some  latent  defect, 
broke  down;  the  plaintiff  was  thrown  from  his 
seat  and  lamed.  It  was  held  that  C.  could  not 
maintain  an  action  against  A.  for  the  injury  that 
he  sustained. 

The  reason  of  the  decision  is  best  stated  by 
Barron  Rolfe :  A's  duty  to  keep  the  coach  in  good 
condition  was  a  duty  to  the  postmaster-general, 
with  whom  he  made  liis  contract,  and  not  a  duty 
to  tlie  driver  employed  by  the  owners  of  the 
horses. 

But  the  case  in  hand  stands  on  a  different 
ground.  The  defendant  was  a  dealer  in  poison- 
ous drugs.  Gilbert  was  his  agent  in  preparing 
them  for  market.  The  death  or  great  bodily 
harm  of  some  person  was  the  natural  and  almost 
inevitable  consequence  of  the  sale  of  the  bella- 
donna by  means  of  the  false  label.  Gilbert,  the 
defendant's  agent,  would  have  been  punishable 
for  manslaughter  if  Mrs.  Thomas  had  died  in  con- 
sequence of  taking  the  falsely  labeled  medicine. 
Every  man  who  by  his  culpable  negligence  causes 


PHARMACAL   JURISPRUDENCE.  2l7 

the  death  of  another,  althoutih  without  intent  to 
kill,  is  giiilty  of  manslaughter:  2  1\.  S.  (IG2,  sec. 
19.  A  chemist  who  negligently  sells  landaunm 
in  a  vial  labeled  as  paregoric,  and  thereby  causes 
the  death  of  a  person  to  whom  it  is  administered, 
is  guilty  of  manslaughter:  Tessymond's  case,  1 
Lew.  (\  C.  109.  So  highly  does  the  law  value 
human  life,  that  it  admits  of  no  justification 
wherever  life  has  been  lost,  and  the  carelessness 
or  negligence  of  one  person  has  contributed  to 
the  death  of  another :  Kegina  v.  Swindall,  2  Car. 
&  Kir.  232,  233,  2  Cox,  C.  C.  141 ;  and  this  rule 
applies  not  only  where  the  death  of  one  is  occa- 
sioned by  the  negligent  act  of  another,  but  where 
it  is  caused  by  the  negligent  omission  of  a  duty 
of  that  other :  Regina  v.  Haines,  2  Car.  &  K.  368- 
371. 

Although  the  defendant  Winchester  may  not 
be  answerable  criminally  for  the  negligence  of 
his  agent,  there  can  be  no  doubt  of  his  liability 
in  civil  action,  in  which  the  act  of  the  agent  is 
to  be  regarded  as  the  act  of  the  principal. 

In  respect  to  the  wrongful  and  criminal  char- 
acter of  the  negligence  complained  of,  this  case 
differs  widely  from  those  put  by  defendant's 
counsel.  No  such  imminent  danger  existed  in 
those  cases. 

In  the  present  case  the  sale  of  the  poisonous 
article  was  made  to  a  dealer  in  drugs,  and  not 
to  a  consumer.     The  injury  therefore  was  not 


218  LIABILITY    OF    MAXUFACTURER. 

likely  to  fall  on  him,  or  on  his  vendee,  ^YllO  was 
also  a  dealer;  Imt  iinich  more  likely  to  be  visited 
on  a  remote  purchaser,  as  actually  happened. 

The  defendant's  negligence  put  human  life  iu 
imminent  dauger.  Can  it  be  said  that  there  was 
no  duty  on  the  part  of  the  defendant  to  avoid  the 
creation  of  that  danger  by  the  exercise  of  greater 
caution?  or  that  the  exercise  of  that  caution  was 
a  duty  only  to  his  immediate  vendee,  whose  life 
was  not  endangered?  The  defendant's  duty 
arose  out  of  the  nature  of  his  business  and  the 
danger  to  others  incident  to  its  mismanagement. 
Nothing  but  mischief  like  that  which  actually 
happened  couhl  have  been  expected  from  sending 
the  poison  falsely  labeled  into  the  market;  and 
the  defendant  is  justly  responsible  for  the  prob- 
able consequences  of  the  act. 

The  duty  of  exercising  caution  in  this  respect 
did  not  arise  out  of  the  defendant's  contract  of 
sale  to  Aspinwall.  The  wrong  done  by  the  de- 
fendant was  in  putting  the  poison,  mislabeled, 
into  the  hands  of  Aspinwall  as  an  article  of  mer- 
chandise to  be  sold  and  afterwards  used  as  the 
extract  of  dandelion,  by  some  person  then  un- 
known. 

The  owner  of  a  horse  and  cart  who  leaves  them 
unattended,  in  the  street,  is  liable  for  any  dam- 
age which  may  result  from  his  negligence :  Lynch 
y.  Nurdin,  1  Ad.  &  EL,  N.  S.,  29,  4  P.  &  D.  072, 
1  K.  29,  10  L.  J.  B.  73,  5  Jur.  797;  Illidge  v. 
(Joodwin,  5  Car.  &  P.  190. 


PHARMACAL    JURISPRUDENCE,  210 

The  owner  of  a  loaded  j>iiii  who  ]Hits  it  into 
the  hands  of  a  chihl,  by  whose  indiscretion  it  is 
discharged,  is  liable  for  the  daiiiai;<'  (Mcasioncd 
bj  the  discharge;  Dixon  v.  Bell,  5  Maul.  cV:  Sel. 
]98,  1  Stark.  287,  17  K.  U.  308. 

The  defendant's  contract  of  sale  to  Aspinwall 
does  not  excuse  the  wrong  done  to  the  plaintil¥. 
It  was  a  part  of  the  means  by  which  the  wrong 
was  effected.  The  plaintiff's  injury  and  their 
remedy  would  have  stood  on  the  same  principle 
if  the  defendant  had  giyen  the  belladonna  to  Dr. 
Foord  without  price,  or  if  he  had  put  it  in  his 
shop  without  his  knowledge,  under  circumstances 
which  would  i^robably  haye  led  to  its  sale  on  the 
faith  of  the  label.  Peters  v.  Johnson,  41  8.  E. 
190,  50  W.  Ya.  614,  57  L.  R.  A.  428,  88  Am.  St. 
Rep.  909  and  notes;  McVeigh  y.  Oentry,  7(1  N. 
Y.  Supp.  535,  72  App.  Diy.  598.  , 

In  Longmeed  y.  Holliday,  (I  Eng.  Law  &  Eq. 
562,  the  distinction  is  recognized  between  an  act 
of  negligence  imminently  dangerous  to  the  lives 
of  others  and  one  that  is  not  so.  In  the  former 
case,  the  party  guilty  of  the  negligence  is  liable 
to  the  party  injured,  whether  there  be  a  contract 
between  them  or  not;  in  the  latter,  the  negligent 
party  is  liable  only  to  the  party  with  Aylioni  he 
contracted,  and  on  the  ground  that  negligence  is 
a  breach  of  the  contract. 

The  defendant,  on  the  trial,  insisted  that  As- 
piuAvall  and  Foord  were  guiKy  of  negligence  in 


220  LIARILITV    OF    MANUFACTURER. 

sellino-  the  article  iu  question  for  what  it  was 
represented  to  be  in  the  hibel,  and  that  the  suit, 
if  it  could  be  sustained  at  all,  should  have  beer 
brought  against  Foord.  The  judge  charged  the 
jury  that  if  thev,  or  either  of  them,  were  guiltv 
of  negligence  in  selling  the  belladonna  for  dan- 
delion, the  verdict  must  be  for  the  defendant ;  and 
left  the  question  of  their  negligence  to  the  jury, 
who  found  on  that  point  for  the  plaintiff. 

If  the  case  really  depended  on  the  point  thus 
raised,  the  question  was  properly  left  to  the  jury. 
But  I  think  it  did  not.  The  defendant  by  affixing 
the  label  to  the  jar,  represented  its  contents  to 
be  dandelion ;  and  to  have  been  "prepared"  by 
his  agent,  Gilbert.  The  word  "pre])ared''  on  the 
label  must  be  understood  to  mean  that  the  article 
was  manufactured  by  him,  or  that  it  had  passed 
through  some  process  under  his  hands,  which 
would  give  him  personal  knowledge  of  its  true 
name  and  quality.  Whether  Foord  was  justified 
in  selling  the  article  upon  the  faith  of  the  defend- 
ant's label  would  have  been  an  open  question  in 
an  action  by  the  plaintiffs  against  him,  and  1 
wish  to  be  understood  as  giving  no  opinion  on 
that  point.  But  it  seems  to  me  to  be  clear  that 
the  defendant  cannot,  in  this  case,  set  up  as  a  de- 
fense that  Foord  sold  the  contents  of  the  jar  as 
and  for  what  the  defendant  represented  it  to  be. 
The  label  conveyed  the  idea  distinctly  to  Foord 
that  the  contents  of  the  jar  was  the  extract  of 


rHARMACAL   JURISPRUDENCE.  221 

dandelion:  and  tliat  U\c  dofendant  knew  it  to  be 
sucli. 

80  far  as  the  defendant  is  concerned,  Foord 
was  under  no  obligation  to  test  the  trnth  of  the 
representation.  The  charge  of  the  judge  in  sub- 
mitting to  the  jury  the  question  in  relation  to  the 
negligence  of  Foord  and  Aspinwall  cannot  be 
complained  of  by  the  defendant. 

Gardiner,  J.,  concurred  in  confirming  the  judg- 
ment, on  the  ground  that  selling  the  belladonna 
without  a  label  indicating  that  it  was  a  poison 
was  declared  a  misdemeanor  by  statute:  2  R.  S. 
694,  sec.  23;  but  expressed  no  opinion  upon  the 
question  whether,  independent  of  the  statute,  the 
defendant  would  have  been  liable  to  these  plain- 
tiffs. 

Gridley,  J.,  was  not  present  when  the  cause  was 
decided.  All  the  other  members  of  the  court 
concurred  in  the  opinion  delivered  by  Chief  Jus- 
tice Ruggles. 

Judgment  affirmed. 

We  find  that  in  the  foregoing  case  the  princi- 
ples gx)verning  agency  are  a  significant  feature. 
These  principles  apply  in  the  case  of  a  druggist 
or  pharmacist  and  his  c](Mk.  'IMic  clerk  is  the 
agent  of  his  employer,  and  while  acting  within 
the  scope  of  his  authority  his  acts  will  bind  his 
employer.  The  employer  is  liable,  civilly,  for  all 
damages  resulting  from  the  negligence  or  mis- 


222  LIABir.ITY    OF    MANUFACTURER. 

takes  of  his  clerk,  while  the  clerk,  himself,  is  lia- 
ble both  civilly  and  criminally.^ 

1  Norton  v.  Sewall,  106  Mass.  143,  8  Am.  Rep.  298;  McCubbin 
V.  Hastings,  27  La.  Ann.  715;  Burgess  v.  Sims  Drug  Co.,  114 
Iowa  275,  89  Am.  St.  Rep.  359,  86  N.  W.  307,  54  L.  R.  A.  364, 
Martin  v.  Temperley,  42  B.  298,  3  G.  &  D.  497,  12  L.  J.  2  B.  129; 
7  Jur.  150. 


PIIARMACAL    JURISPRUDENCE.  223 

CHAPTER  XI EL 

Contributory  Negligence. 

"■Coiitrihiitoi'Y  uei>lii>euc('"  has  beoii  dctined  as 
"The  absence  of  reasonable  care  and  caution  in  a 
ji,iven  case,  on  the  part  of  a  complainant."^  In 
another  instance  the  court  defined  it  as  being 
''Any  want  of  ordinary  care,  even  in  a  slight  de- 
gree, which  directly  contributes  to  the  injury."^ 
Again,  it  has  been  said  judicially  that  "If  the 
complainant's  fault,  whether  of  omission  or  com- 
mission, has  been  the  proximate  cause  of  his  in- 
jury, he  is  without  remedy  against  one  also  in 
the  wrong.  "^ 

When  it  appears  from  the  evidence  in  a  case 
that  the  plaintiff,  himself,  is  the  only  one  charge- 
able wi'th  negligence,  then,  though  the  defend- 
ant's act  may  have  been  the  immediate  cause  of 
the  damage,  of  course  there  can  be  no  recovery 
against  the  plaintiff.  It  is  in  those  cases  where 
the  defendant,  also,  has  been  negligent,  that  the 
question  arises  as  to  whether  the  damage  was 
caused  solely  by  the  negligence  of  the  defendant, 
or,  whether  the  plaintiff  so  far  contributed  to  the 
injurious  result,  that  l)ut  for  his  negligent  act  or 

1  Washington  Etc.  R.  R.  Co.  v.  Gladmon,  15  Wall.  401,  21  L. 
Ed.  114,  7  U.  S.  Notes  909. 

2  Neanow  v.  Uttech,  46  Wis.  .590,  1  N.  W.  221. 

•3  Little  V.  Hackett,  116  U.  S.  371,  6  .Sup.  Ct.  Rep.  .391,  29  L. 
Ed.  652,  11  U.  S.  Notes  36. 


224  CONTRIBUTORY    NEGLIGENCE. 

omission  it  could  not  liave  occnrred.  If  the  evi- 
dence shows  the  former  case  to  be  true,  the  plain- 
tiff may  recover,  but  if  the  latter  case  be  proven 
he  can  recover  nothing.^ 

In  some  of  the  States,  the  burden  of  proving 
contributory  negligence  on  the  part  of  the  plain- 
tiff rests  wholly  upon  the  defendant,  and  he  must 
establish  this  defense  by  a  preponderance  of  evi- 
dence.^ In  others,  it  is  held  that  the  plaintiff 
must  not  only  show  that  the  defendant  was  negli- 
gent, but  must  also  prove  that  he,  himself,  "was 
in  the  exercise  of  due  care  with  respect  to  the 
occurrence  from  which  the  injury  arose.''^ 

It  may  easily  occur  in  the  experience  of  the 
pharmacist  that,  while  chargeable  with  a  mistake 
himself,  he  may  be  saved  from  a  judgment  for 
damages  by  proving  contributory  negligence  on 
the  part  of  the  one  complaining  of  injury.  A 
typical  example  of  contributory  negligence  aris- 
ing in  connection  with  the  practice  of  pharmacy 
is  found  in  the  case  Gwynn  v.  Duffield,  61  Iowa, 
64,  47  Am.  Rep.  802,  1-5  N.  W.  594.  We  will  sub- 
mit the  facts  of  the  case  with  the  reasoning  of 
the  court  thereon,  for  the  careful  consideration  of 

1  Railroad  Co.  v.  Jones,  95  U.  S.  439,  24  L.  Ed.  506,  9  U.  S. 
Notes  279. 

2  MacDougall  v.  Central  R.  R.  Co.,  63  Cal.  431,  4  Cal.  Notes 
99;  Hocum  v.  Weitherick,  22  Minn.  152;  Mallory  v.  Griffey, 
85  Pa.  St.  275. 

3  Fox  V.  Glastenbury,  29  Conn.  204;  Chicago  Etc.  R.  R.  Co. 
V.  Freeman,  6  111.  App.  608;  Hinckley  v.  Cape  Cod  R.  R.  Co., 
120  Mass.  257;  Ronker  v.  St.  John,  21  Ohio  Cir.  Ct.  Rep.  39. 


PHARMACAI.    JTRISPRUDENCE.  225 

tlie  roadev.  The  rei)oi't  of  tlio  case  represents 
that  "The  defeiidants  are  aixtthecaries  enjiaued 
in  business  as  apothecaries.  Tlie  phiintilT  brinjis 
this  action  to  recover  of  them  |5000.00,  as  dam- 
ages alleged  to  have  been  sustained  by  reason  of 
their  negligence  as  apothecaries.  They  pleaded 
a  general  denial.  There  was  a  trial  to  a  jury, 
and  verdict  and  judgment  were  rendered  for  the 
plaintiff.     The  defendants  appeal." 

The  following  opinion  in  this  case  was  ren- 
dered by  Adams,  Judge :  "The  injury  was  caused 
by  reason  of  the  plaintitf' s  taking  an  overdose  of 
belladonna.  He  went  into  the  defendants'  drug 
store  and  helped  himself  to  what  he  supposed  was 
a  dose  of  the  extract  of  dandelion ;  unfortunately 
the  jar  from  which  he  helped  himself  contained 
belladonna,  and  what  he  took  was  an  overdose  of 
that  drug.  He  avers  that  the  defendants  sold 
him  the  dose  in  question  for  the  extract  of  dan- 
delion, and  also  thafhe  took  it  under  their  direc- 
tion, and  under  their  representation  that  it  was 
the  extract  of  dandelion. 

He  introduced  very  little  evidence,  if  any,  tend- 
ing to  show  that  the  defendants  sold  him  the  dose. 
But  he  showed  circumstances  from  which  the 
jury  was  justified,  if  they  believed  the  evidence, 
in  finding  that  the  defendants  consented  to  his 
having  the  dose  as  a  gift.  In  addition  to  tliis  he 
showed  l)eyon(l  controversy  that  the  defendants 
were  guilty  of  negligence.     He  showed  also,  that 


22G  COXTRIBUTORV    XEGLIGENCE. 

belladonna  is  a  poison,  and  that  injury  resulted 
to  him  from  taking  it. 

Now  the  law  is  clear  that  where  a  person, 
whether  an  apothecary  or  not,  negligentl}'  gives 
another  person  poison,  for  the  pui"[30se  of  being- 
swallowed  by  him,  and  the  poison  is  swallowed  by 
him  and  produces  injury,  the  person  negligently 
giying  the  poison  is  guilty  of  tort,  and  is  liable 
for  the  injury,  unless  the  injured  person  was  also 
guilty  of  negligence  which  contributed  to  the  in- 
jury. The  principal  question  presented,  and  the 
only  one  which  we  deem  it  necessary  specifically 
to  determine,  is  one  which  arises  upon  an  in- 
struction giyen  by  the  court  on  the  subject  of 
contributory  negligence.  The  court  giyes  the 
general  rule  in  respect  to  the  effect  of  contrib- 
utory negligence  on  the  part  of  theperson  injured, 
and  so  far  there  is  no  complaint  by  either  party. 
But  the  court  went  further,  and  gaye  an  excep- 
tion to  the  rule,  which  may  properly  enough  be 
giyen  in  some  cases,  but  for  which  the  defendants 
contended  that  there  is  in  this  case  no  warrant  in 
the  eyidence.  The  exception  giyen,  stated  in  a 
general  way,  is  the  familiar  one,  that  a  plaintiff 
in  an  action  for  tort  may  recoyer,  notwithstand- 
ing that  his  own  negligence  contributed  to  the 
injury,  if  the  defendants,  after  seeing  the  danger 
of  injury,  did  not  use  ordinary  care  to  ayoid  it. 
Morris  y.  Chicago,  &c.  11.  R.  Co.,  45  Iowa,  29; 
Weymire  y.  Wolfe,  52  Iowa,  533,  3  N.  W.  541. 


PHAKMACAL   j  U  KlSl'RU  DENCK.  Hi 

111  (Iclci'iniiiiiiii-  wlictlicr  the  court  erred  in  giving- 
the  instruction,  we  sliall  have  occasion  to  notice 
the  peculiar  hinjiuage  used,  and  shall  also  have 
occasion  to  refer  to  the  undisput(>d  facts  toucli- 
ino-  the  question  of  neoligeuce.  The  court  in- 
structed the  jury  that,  if  they  found  that  the  in- 
juries coinplained  of  werc^  (-ontribuied  to  by  the 
jtlaintiff,  he  could  not  recover,  unless  it  was 
lurther  shown  by  him  that  his  fault,  or  neglect, 
or  carelessness,  or  wrong,  was  known  to  the  de- 
fendants, and  that  the  defendants  could  have 
])revented  the  injuries  complained  of  by  the  exer- 
cise of  reasonable  care,  after  those  facts  had  be- 
come known.  The  language  used,  it  will  be  seen, 
is  not  clear.  That  the  court  intended  to  give 
the  ordinary  rule,  as  stated  in  the  cases  above 
cited,  there  is  no  doubt.  But  the  use  of  the  word 
'wrong,'  in  the  connection  in  which  it  was  used, 
leads  us  to  suspect  that  the  court  intended  to  add 
something  to  the  ordinary  rule.  The  idea  to  be 
expressed  was  the  plaintiff's  danger,  or,  what  is 
the  same  thing  under  the  circumstances,  the 
])laintiff's  iicf/lif/cucc  producing  danger.  If  the 
court  intended  nothing  more  than  that,  the  words 
'fault  or  neglect  or  carelessness  or  wrong,'  were 
not  ha]ipily  chosen.  We  have  to  say,  therefore, 
that  it  rather  appears  to  us  that,  in  the  use  of  the 
word  'wrong,'  the  court  had  in  mind  something 
that  might  lie  expressed  by  the  word  Ircsjiass.  or 
possildy  by  the  word  Ihcfl.      Tf  so,  then  the  court 


228  CONTRIBUTORY    NEGLIGENCE. 

iiiteiKUnl  to  iustruct  the  jury  that  if  the  pla.in- 
tilT  was  guilty  of  trespass  or  theft,  aud  such  tres- 
pass or  theft  became  known  to  the  defendants, 
and  they  did  not,  after  such  knowledge,  use  ordi- 
nary care  to  prevent  the  injury,  they  would  be 
liable  notwithstanding  the  plaintiff's  negligence. 
But  it  will  be  seen  at  once  that  they  might  have 
discovered  the  plaintiff's  wrong  of  that  kind, 
without  discovering  that  he  was  in  any  danger; 
and  unless  they  discovered  his  danger,  there  is 
no  ground  for  the  exception  to  the  rule  in  respect 
to  the  effect  of  the  plaintiff's  contributory  negli- 
gence. 

But  in  no  view  can  the  instruction  be  sustained. 
The  plaintiff  predicated  his  right  to  recover  upon 
the  theory  that  he  took  the  drug  with  the  defend- 
ants' consent,  and  by  that  he  must  stand  or  fall. 

Proceeding,  then,  upon  that  theory,  let  us  in- 
quire what  are  the  undisputed  facts  respecting 
the  subject  of  negligence.  Taking  the  evidence 
of  consent,  as  showing  what  the  plaintiff  claims 
that  it  does,  the  facts  are  as  follows :  The  y)lain- 
tiff  went  to  the  jar  of  belladonna,  and  took  out 
on  the  point  of  his  knife  what  lie  tlumght  was  a 
dose  of  the  extract  of  dandelion,  and  called  the 
attention  of  one  of  the  defendants  to  it,  and 
asked  if  that  was  a  proper  dose,  and  thereupon 
the  plaintiff  took  it.  The  jar,  it  appears,  was 
properly  labeled,  and  the  plaintiff's  negligence, 
if  any,  consisted  in  not  discovering  that  the  jar 


PHARMACAL   JURISPRUDENCE.  229 

coiitaiiKMl  iH'lladcHiiin.  Tlicio  is  no  pivtonse  that 
he  could  not  read.  The  only  excuse  for  him  was, 
so  far  as  we  can  discover,  thai  the  defendant, 
wliom  he  consnKed  in  regard  lo  the  size  of  the 
dose,  had  just  made  the  same  mistake.  He  had 
just  taken  from  that  jar,  as  the  plaintitf  had  seen, 
a  portion  of  its  contents,  to  till  an  order  for  the 
extract  of  dandelion,  j»iven  by  the  plaintiff,  and 
was  doing  up  the  package  when  the  plaintitf  pro- 
ceeded to  help  himself  from  the  jar  as  above  set 
forth.  There  is  not  the  slightest  evidence  that 
the  defendant  discovered  the  plaintiff's  danger. 
The  jury,  then,  should  have  been  instructed,  with- 
out qualification,  that,  if  the  plaintiff  was  guilty 
of  negligence  contributing  to  the  injury,  he  can- 
not recover."    "Reversed." 

One  of  the  judges  filed  a  diss(Miting  oi)inion  in 
this  case.  He  argued,  first,  that  ''the  defeuihints 
were  bound  to  know  the  contents  of  the  jar,  and 
its  nature  and  character;  the  plaintiff,  in  the 
exercise  of  the  highest  care,  was  justified  in  rely- 
ing upon  defendants'  knowledge  of  the  contents 
of  the  jar,  and  upon  their  act,  in  taking  a  jiart  of 
it,  as  a  representation  that  it  was  the  medicine 
lie  ordered."  He  maintains  that,  under  the  con- 
ditions stated,  the  plaintiff  was  not  chargeable 
^^'ith  contributory  negligence.  In  his  second 
argument,  this  judge  holds  that,  conceding  that 
the  plaintiff  was  negligent,  the  liability  for  the 
injury  would  still  rest  upon  the  defendants. 


230  CONTRIBUTORY    NEGLIGENCE. 

If  the  plaintiff's  act  in  helping  himself  to  the 
l»«'lla(lonna  had  l)een  in  tlie  usual  course  of  busi- 
ness, that  is,  if  that  had  l^een  tlie  usual  way  of 
dispensing  drugs;  or,  if  it  had  appeared  from  the 
eAddence  that  the  defendants  actually  saw  the 
danger  of  injury  and  did  not  use  ordinary  care  to 
prevent  it,  the  opinion  of  the  dissenting  judge 
Avould  seem  to  be  right;  but,  as  the  case  stands, 
we  think  tliat  the  judgment  of  the  court  is  sound. 


PHARMACAL    JURISPRUDENCE.  231 

CHAPTER  XIV. 

Special  Features,  Civil  and  Ckiminal. 

The  liability  of  the  pharmacist  is  dual  in  its 
nature,  and  he  may  be  subjected  to  both  a  civil 
action  and  a  criminal  prosecution  for  the  same 
act.  For  instance,  in  compound  in*;-  a  ju'cscrip- 
tion,  if  he  uses  a  poisoncms  drui;-  in  place  of  an 
innocent  one  prescribed  by  tlie  physician,  as  bel- 
ladonna instead  of  the  extract  of  dandelion,  and 
the  death  of  the  patient  is  caused  thereby,  two 
separate  actions  may  be  commenced  against  him. 
He  may  be  sued  civilly  to  recover  damages,  and 
at  the  same  time  prosecuted  criminally  on  a 
charge  of  manslaughter.^  A  judgment  recovered 
against  him  on  the  civil  suit  will  not  interfere 
with  his  conviction  for  the  crime.  Thus,  for  the 
one  act,  he  may  be  deprived  of  both  his  property 
and  his  liberty.  Moreover,  if  he  is  practicing 
without  a  license,  he  is  guilty  of  a  misdemeanor 
under  our  statutes  and  is  liable  to  a  criminal 
prosecution  for  each  act  of  that  kiud.^ 

The  pharmacist  is  not  to  be  held  responsible 
for  any  unintentional,  consequential  injury  that 
nmy  result  from  his  lawful  act  where  it  does  not 
appear  that  he  is  cliargeable  Avitli  negligence  or 
folly.     In  a  New  York  case,  Allen,  a  passenger, 

1  Tessymond's  Case,  1  Lewin's  Crown  Cas.  109. 

2  People  V.  Rontey,  21  N.  Y.  St.  R.  174,  4  N.  V.  Supp.  2.35. 
117N.  Y.  624,  22N.  E.  112.S. 


232  SPECIAL     FEATURES. 

undertook  to  recover  damages  from  a  steamship 
company,  for  a  mistake  in  fillino  a  prescription 
on  board  one  of  its  ships  during  a  voyage.  lie 
was  given  calomel  instead  of  quinine,  but  no 
actual  negligence  Avas  shown.  The  court  held 
that  "a  person  is  not  legally  responsible  for  any 
unintentional  injury  from  a  lawful  act  when  the 
failure  to  exercise  due  care  cannot  be  imputed  to 
him.  And  the  burden  of  proving  such  lack  of 
care,  where  the  act  is  lawful,  is  upon  the  plain- 
tiff."! 

Our  statutes  require  the  pharmacist  to  label 
the  poisons  which  he  sells,  and  a  failure  to  do  so 
is  made  a  misdemeanor,  punishable  by  fine,  etc. 
This  is  simply  his  punishment  for  the  crime  of 
violating  the  law,  regardless  of  whether  or  not 
any  injury  results  from  his  negligence.  Where 
injury  does  result,  he  is  liable  to  a  civil  suit  for 
damages;  and,  in  case  of  death,  he  may  be  sub- 
jected to  a  second  criminal  prosecution  on  a 
charge  of  manslaughter.  If,  liowever,  it  appears 
that  he  fully  and  fairly  warned  the  purchaser  as 
to  the  dangerous  character  of  the  drug,  and  no 
negligence  is  proven,  then  he  would  be  relieved 
from  responsibility  as  to  resulting  injury.  An 
action  was  commenced  by  Mary  Wohlfart 
against  Charles  A.  Reckert,  a  diiiggist,  to  recover 
damages  for  death  caused  by  alleged  negligence. 

1  Allen  V.  State  S.  S.  Co.,  1.32  N.  Y.  95;  Losee  v.  Buchanan, 
51  N.  Y.  476,  10  Am.  Rep.  623;  Carpenter  v.  Blake,  75  N.  Y.  12; 
Morris  v.  Piatt,  32  Conn.  75;  Simonds  v.  Henry,  39  Me.  15»i. 


rilARMACAL    JURISPRUDENCE.  233 

It  seems  that  lieckert's  clerk  had  sold  (he  plain- 
tiff's deceased  husband  a  poison  without  affixing 
tliereto  the  label  reqnireil  by  statute.  The  evi- 
dence showed  that  the  clerk  had  informed  the 
man  that  the  "black  drops"  for  which  he  asked 
was  a  stron^-  poison,  and  that  he  should  take 
only  ten  or  twelve  drops  for  a  dose.  It  appears, 
however,  that  the  deceased  had  taken  many  times 
the  amount  named  by  the  clerk,  havinjn'  been  in- 
formed by  a  friend  that  he  had  taken  half  a  glass 
of  "black  draught''  and  was  cured  by  it.  The 
absence  of  the  label  was  admitted. 

The  court  held  that  though  selling  the  poison 
without  a  label  was  a  misdemeanor,  yet  the  fact 
that  the  clerk  had  fully  and  fairly  warned  the 
purchaser  of  the  dangerous  character  of  the  drug 
relieved  the  defendant  from  liability  in  a  civil 
action.^ 

The  i)hariiiacist  sometimes  tinds  himself  in  the 
endiarrassing  position  of  being  recpiired  to  till  a 
prescription  which  he  knows  contains  an  over- 
dose of  some  poisonous  drug.  His  professional 
knowledge  convinces  him  that  the  preparation 
will  be  dangerous,  and,  perhai)s,  even  deadly.  His 
first  duty  in  such  a  situation  is  to  call  the  atten- 
tion of  the  prescril>ing  physician  to  the  fact  of 
the  erroi-,  if  possible,  and  give  him  an  ()]»])(»rtunity 
to  correct  it.  Tf  it  is  im])()ssil»le  to  communicate 
witli  tlie  ]>hysician,  or  if  I  he  laMci-  rcCnscs  to  niod- 

1  Wohltahrt  v.  Beckert,  12  Abb.  \.  C.  478. 


234  SPECIAL    FEATURES. 

ifv  the  formula  and  insists  npon  its  beinji"  coni- 
ixmnded  as  it  stands,  the  pharmacist  mnst  de- 
cline to  do  it ;  for  if  he  dispenses  the  drn<i-  nnder 
those  conditions  and  the  patient  is  injnred  there- 
by, both  pharmacist  and  physician  are  liable.  A 
case  of  this  kind  is  recorded  in  the  State  of  Mas- 
saclinsetts,  where  a  joint  action  was  sustained 
ai»ainst  the  physician  who  wrote  the  prescription 
and  tlie  drnii'^ist  who  comjKnmdeil  it.^ 

In  a  Peuns^'lyania  case  of  the  same  kind,  Judge 
Brewster  said:  "If  the  exercise  of  reasonable 
care  would  haye  warned  him  that  he  was  prepar- 
ing something  which  would  ineyitably  kill,  it 
would  be  criminal  for  him  to  go  on."- 

In  cases  of  this  kind,  howeyer,  the  plaintilT 
must  prove  affirmatively  that  there  has  been  neg- 
ligence on  the  part  of  the  pharmacist;  it  is  not 
sufficient  to  infer  it. 

Negligence  is  said  to  be  the  doing  of  something 
which  a  reasonable  and  prudent  man  would  not 
do,  or  the  omission  to  do  something  which  a  rea- 
sonable man,  guided  by  those  considerations 
which  ordinarily  regulate  the  conduct  of  human 
affairs  Avould  do.  Each  case  presents  its  own 
peculiar  facts  and  couditicms,  all  of  which  must 
be  taken  int«)  consideration  in  (Ictcnuiuiug  the 
question  of  negligence. 

If  a  druggist  sells  an  article  that  is  harmless 
when  used  alone,  but  beconu'S  dangerous  when 

1  Hilliard  on  Torts,  page  297,  note  a. 

2  Commonwealth  v.  Raur,  Phila.,  Oyer  and  Terminer,  April 
1869. 


PHARMACAL    JURISPRUDENCE.  235 

combined  with  certain  others,  and  is  not  aware 
that  it  is  to  be  so  cond)iued,  he  is  not  to  be  held 
liable  for  any  damage  resultino-  from  the  condn- 
nation> 

In  a  Georgia  case  the  conrt  decided  that 
where,  in  good  faith,  a  druggist  recommends  a 
prescription  as  that  of  another  named  person, 
and  fills  the  same  in  compliance  with  the  request 
of  his  customer,  charging  only  for  the  medicines 
and  his  services  in  compounding  them,  he  is  not 
liable  for  any  damage  which  may  result  from  the 
use  of  the  remedy.  Tn  this  case  it  was  held,  also, 
that  to  fill  a  prescription  is  "to  furnish,  prepare 
and  combine  the  requisite  materials  in  due  pro- 
portion as  prescribed,"  and  that  the  term  "pre- 
scription" is  broad  enough  to  include  a  recipe  or 
formula  for  the  treatment  of  horses,  whether  it 
is  furnished  by  a  physician  or  by  some  other  per- 
son.^ 

The  courts  of  each  State  interpret  its  statutes, 
and  determine  what  things  may  or  may  not  be 
sold  by  one  who  is  not  a  licensed  pharmacist.  In 
an  Illinois  case  it  was  decided  that  the  term 
"usual  remedies,"  as  employed  in  the  statute,  did 
not  include  quinine."  In  a  Minnesota  case  it  was 
held  that  the  sale  of  borax  was  not  prohibited.^ 

In  Brown  v.  Marshall,  47  IMich.,  576,  41  Am. 
Rep.  728,  11  N.  W.  392,  the  court  holds  that 

1  Davidson  v.  Nichols,  11  Allen  (Mass.),  514. 

2  Ray  V.  Burbank,  01  Ga.  505,  34  Am.  Rep.  lO.S. 

3  Cook  V.  People,  125  111.  278,  17  N.  E.  849. 

4  State  V.  Donaldson,  41  Minn.  74,  42  N.  VV.  781. 


236  SPECIAL    FEATURES. 

where  a  drugjj;ist  lias  iucorreetly  tilled  a  prescrip- 
tion he  is  not  permitted  to  offer  as  a  defense  the 
fact  that  the  case  itself  was  negligently  treated. 

An  action  was  prosecuted  by  Julia  Norton,  ad- 
ministratrix, against  David  J.  Sewell,  an  apoth- 
ecary, to  recover  damages  for  causing  the  death 
of  the  plaintiff's  husband.  The  question  of 
privity  of  contract  and  the  survival  of  the  right 
of  action  are  considered  in  this  case. 

"At  the  trial  in  the  superior  court,  before  Eeed, 
J.,  the  evidence  tended  to  show  that  Thomas 
Norton  was  in  the  employment  of  Patten,  and 
on  Aug.  19th,  18G9,  was  sick  with  a  cold  at  Pat- 
ten's shop ;  that  Patten  told  him  to  go  home  and 
said  that  he  would  get  some  medicine  and  come 
to  his  house  in  the  evening  and  doctor  him ;  that 
Patten  in  the  evening  of  that  day  went  to  the 
shop  of  defendant,  who  Avas  an  apothecary,  and 
asked  for  two  ounces  of  rhubarb,  and  an  attend- 
ant there  gave  him,  by  mistake,  laudanum  in- 
stead of  rhubarb ;  that  he  procured  the  medicine 
to  administer  to  Norton ;  and  that  he  proceeded 
with  it  to  Norton's  house  and  there  administered 
about  an  ounce  of  the  laudanum  to  him,  from 
the  effects  of  which  he  died  in  five  or  six  hours. 

The  defendant  asked  for  a  ruling  'this  was  a 
right  of  acticm  which  did  not  survive  to  an  ad- 
ministrator.' But  the  judge  declined  so  to  rule; 
and  also  refused  a  recpiest  of  the  defendant  for 
a  ruling  'that  there  was  no  privity  of  contract  be- 


PHARMACAL    JURISPRUDENCE.  237 

tween  the  defendant  and  the  deceased,  and  there- 
fore the  action  could  not  be  maintained.'  The 
jury  found  for  (he  plaintiff,  with  daniajies  in  the 
sum  of  1450.00;  and  the  defendant  allej^ed  excep- 
tions." 

On  appeal,  Justice  Gray  delivered  the  follow- 
ing opinion :  "Upon  the  allegations  in  the  dec- 
laration, and  the  statements  in  the  bill  of  excep- 
tions, the  jury  must  be  taken  to  have  found  that 
the  defendant,  an  apothecary,  by  his  sei-vant,  neg- 
ligently sold,  as  and  for  tincture  of  rhubarb  (a 
well  known  and  harmless  medicine)  two  ounces 
of  laudanum,  a  dangerous  and  deadly  poison,  to 
Patten,  who  procured  it  for  the  purpose  of  ad- 
ministering it,  and  did  administer  one  ounce  of 
it,  as  a  medicine,  to  his  servant,  the  plaintiff's 
intestate,  from  the  effects  of  which  he  died.  This 
finding  includes  a  violation  of  duty  on  the  part  of 
the  defendant,  and  an  injury  resulting  therefrom 
to  the  intestate,  for  which  the  defendant  Avas  re- 
sponsible, without  regard  to  the  question  of  pri- 
vitj^  of  contract  between  them.  The  case  is  with- 
in that  of  Thonms  v.  Winchester,  2  Selden,  G  N. 
Y.,  397,  57  Am.  Dec.  455  and  Notes,  which  has 
often  been  recognized  and  approved  by  this  court. 
Davidson  v.  Nichols,  11  Allen,  514,  519.  Mc- 
Donald V.  Snelling,  14  Allen,  290,  295,  92  Am. 
Dec.    768    and    Notes.     Wellington    v.    Downer 


238  SPECIAL    FEATURES, 

"By  the  statutes  of  the  Commonwealth,  'ac- 
tions of  tort  for  assault,  battery,  imprisonment, 
or  other  damage  to  the  person,'  survive  and  may 
be  prosecuted  by  the  executor  or  administrator  of 
the  party  injured.  Gen.  Sts.,  C.  127,  I ;  C.  128, 
1.  The  words  'damage  to  the  person,'  as  here 
used,  do  not,  indeed,  extend  to  torts  not  directly 
affecting  the  person,  but  only  the  feelings  or  rep- 
utation, such  as  breach  of  promise,  slander,  or 
malicious  prosecution.  Smith  v.  Sherman,  4 
Cush.,  408;  Nettleton  v.  Dinehart,  5  Gush.,  543. 
But  they  do  include  every  action,  the  substantial 
cause  of  which  is  a  bodily  injury,  or,  in  the  words 
of  Chief  Justice  Shaw  in  4  Gush.,  413,  'damage  of 
a  physical  character,'  etc." 

The  Penal  Code  of  each  state  should  be  con- 
sulted for  special  statutory  provisions  bearing 
upon  the  criminal  liability  of  the  pharmacist. 
Careful  attention  should  be  given  to  the  sections 
dealing  with  the  administering  of  drugs  or  the 
using  of  instruments  to  produce  miscarriage;  the 
administering  of  any  poison  or  other  destructive 
or  noxious  thing,  so  as  to  endanger  life;  the  ad- 
ministering of  drugs  or  medicines  to  make  possi- 
ble the  commission  of  any  crime ;  the  administer- 
ing of  poisoned  drugs,  wrongly  and  with  injurious 
effect,  by  a  physician  while  intoxicated ;  the  man- 
ufacturing or  selling  of  drugs  or  instruments  for 
unlawful  purposes;  also,  the  section  declaring 
who  is  a  principal  in  the  commission  of. a  crime. 


PHARMACAL    JURISPRUDENCE.  239 

CHAPTER  XV. 

Important  Business  Features. 

The  legal  status  of  the  plivsiciau's  prescription:, 
as  to  its  ownership,  has  not  yet  been  settled  by 
the  courts  in  this  country.  The  legal  rights  of 
the  physician  himself  in  his  own  prescription,  in 
the  absence  of  statutory  provisions,  are,  doubt- 
less, those  of  the  author  of  any  writing  under  the 
principles  of  common  law  copyright.^ 

Under  the  common  law  the  author  is  protected 
in  his  exclusive  right  to  first  print  and  publish 
his  writings;  and  he  may  set  in  motion  the  power 
of  the  courts,  by  means  of  injunction,  to  restrain 
another  from  publishing  them  without  his  con- 
sent. 

With  regard  to  his  prescription,  the  physician 
occupies  the  place  of  author,  and  undoubtedly 
should  be  protected  from  any  unwarranted  use 
or  publication  of  his  work  by  another.  The  pub- 
lication of  recipes  for  medicines  and  secrets  for 
the  compounding  of  medicines  has  been  en- 
joined.^ 

This  principle  has  been  maintained  with  regard 
to  letters,  lectures,  etc."     It  has  also  been  applied 

1  Donaldson  v.  Beckett,  4  Burr  2408;  Wheaton  v.  Peters,  8 
Pet.  591,  8  L.  Ed.  1055,  3  U.  S.  Notes  482;  French  v.  Maguire, 
55  How.  Pr.  471;  Grigsby  v.  Breckenridge,  2  Bush  480,  92  Am. 
Dec.  509;  Bullinger  v.  Mackey,  15  Blatchf.  .550,  Fed.  Cas.  No. 
2127. 

2  Yovatt  V.  Winvard,  I.  J.  &  W.  394;  Morison  v.  Moat,  9 
Hare  241. 

3  Abernethy  v.  Hutchinson,  3  L.  J.,  Ch.  209,  1  H.  &  T.  28; 
Gee  V.  Pritchard,  2  Swans  402,  19  R.  R.  487. 


240  IMPORTANT    BUSINESsHfEATURES. 

to  commimications  between  professional  men 
and  their  patrons;  and,  in  general,  the  right  of  a 
man  to  keep  or  publish  his  own  ideas  has  been 
strong!}"  maintained  by  the  courts.^ 

When  an  author  publishes  his  writings,  he  is 
held  to  hereby  relinquish  his  private  or  exclusive 
rights  therein  and  they  become  public  property. 
His  onl}^  way  to  secure  to  himself  the  continued, 
exclusive  control  of  liis  writings,  after  publica- 
tion, is  to  avail  himself,  before  publication,  of  the 
statutory  provisions  framed  to  that  end. 

Of  course  the  physician  does  not  ordinarily  se- 
cure a  statutory  copyright  on  his  prescriptions. 
Such  a  course  would  be  impracticable.  He  must 
look  for  protection  to  the  common  law  principles 
just  referred  to. 

The  fact  that  a  prescription  has  been  furnished 
to  a  patient  is  not  such  a  publication  of  it  as  will 
serve  to  deprive  a  physician  of  his  rights  therein. 
Prescribing  for  a  patient  is  not  a  general  publica- 
tion of  the  formula  used ;  it  is  furnished  to  the 
patient  for  a  specific  use  or  purpose,  undoubtedly 
limited,  the  nature  of  which  is  understood,  pre- 
sumably, by  both  him  who  furnishes  it  and  him 
who  receives  it.  This  view  of  the  subject  seems 
reasonable,  and  it  is  in  accordance  with  the  judi- 
cial rulings  in  cases  most  nearly  allied  to  that 
under  consideration.  Proceeding  on  academic 
lines,  in  the  absence  of  decisions,  it  seems  fair  to 

1  Mills  V.  Taylor,  4  Burr  2362. 


PHARMACAl.    JURISPKUDEN'CE.  241 

hold  that  the  patient  buys  only  this  specific  nse 
of  the  remedy,  and  that  his  rights  in  the  fornmla 
employed  are  limited  to  that  use.  He  owns  the 
paper  on  which  the  formula  is  written,  but  does 
not  own  the  idea  embraced  in  the  writing  and  the 
author  of  it  may  forbid  its  refilling.  The  physi- 
cian still  owns  the  exclusive  right  to  sell  the  pre- 
scription to  other  patients;  as,  under  copyright 
by  statute,  the  buyer  of  a  book  owns  the  individ- 
ual copy  purchased  by  him,  while  the  author  still 
owns  the  ideas  or  thought  as  expressed  in  the 
book,  with  the  exclusive  right  to  sell  other  copies. 

The  protection  of  this  principle  would  not  ex- 
tend to  formulae  or  remedies  that  have  been  al- 
ready published.  They  belong  to  the  public,  and 
the  use  of  such  by  a  physician  in  his  prescription 
does  not  serve  to  give  to  him  any  exclusive  right 
therein. 

Having  once  been  filled  the  life  of  the  ])r('scri|»- 
tion  is  ended.  It  is  functus  officio.  Its  chief 
importance  beyond  this  point  is  in  its  use  as  evi- 
dence of  its  own  nature,  in  case  mistake  be 
charged  against  either  physician  or  pharmacist. 
For  this  reason  it  is  made  the  pharmacist's  duty, 
by  statute,  to  file  and  preserve  the  prescription 
for  a  certain  number  of  years. 

The  "patent  medicine"  feature  of  the  pharma- 
cist's business  has  assumed  considerable  commer- 
cial importance  in  this  age.  So  inviting  and  al- 
most limitless  is  the  field  for  proprietary  medi- 


242  IMPORTANT    BUSINESS    FEATURES. 

cines  that  nearly  every  dealer  in  drugs  is  tempt- 
ed, at  some  time,  to  experiment  along;  that  line 
on  his  own  account.  His  exclusive  right  to  man- 
ufacture and  sell  his  particular  compound  is  pro- 
tected by  registering  the  trade-mark.  This  is  a 
protection  afforded  by  the  State  government.  If 
the  article  for  which  protection  is  desired  is  to 
be  used  in  commerce  with  foreig-n  nations,  the 
several  States  of  the  Union,  or  the  Indian  tribes, 
the  trade-mark  may  be  registered  in  the  Patent- 
ofifice  of  the  United  States,  and  thus  federal  pro- 
tection is  secured.^ 

Trade-mark  is  defined  as  "A  mark  by  which 
one's  wares  are  known  in  trade.'-^  "A  word, 
mark,  or  device  adopted  by  a  manufacturer  or 
vendor  to  distinguish  his  production  from  other 
productions  of  the  same  article."^ 

A  trade-mark  may  consist  of  figures,  letters  or 
words  arbitrarily  chosen,  or  of  some  peculiar  de- 
vice; or,  it  may  be  formed  by  some  peculiar  ar- 
rangement of  figures,  letters  or  words,  etc.  "But 
letters  or  figures,  which  indicate  quality  merely, 
and  Avhich  cannot  indicate,  by  their  own  meaning 
or  by  association,  origin  or  ownership,  may  not 
be  appropriated."*     It  was  held  that  the  term 

1  Trade-mark  Cases,  100  U.  S.  82,  92,  99;  25  L.  Ed.  550,  9 
U.  S.  Notes  792  (1879). 

2  Shaw  Stocking  Co.  \-.  Mack,  12  Fed.  710,  21  Blatchf.  1 
(1882);  Humphrey's  Specific  Homeopathic  Medicine  Co.  v. 
Wenz,  14  Fed.  252;  Adams  v.  Heisel,  31  Fed.  280. 

3  Hostetter  v.  Fries,  17  Fed.  R.  622,  21  Blatchf.  339  (1883). 

4  Anderson's  Dictionary  of  Law,  page  1074. 


PHARMACAI.   JURISPRUDENCE.  243 

"syrup  of  figs"  could  not  be  protected  as  a  trade- 
mark. It  expresses  only  the  natural  (luality  or 
character  of  the  syrup,  and  any  one  must  be  per- 
mitted to  make  syrup  from  figs.  To  meet  this 
objection  the  proprietors  testified  that  it  was 
an  arbitrary  use  of  the  term,  and  that  their  com- 
pound did  not,  in  fact,  contain  any  product  of 
figs  whatever.  From  this  evidence  the  court  held 
that  it  was  in  the  nature  of  a  fraud  upon  the 
public,  and  for  that  reason  this  name  could  not 
be  protected  as  a  trade-mark.^ 

The  druggist  and,  indeed,  every  other  citizen 
should  be  acquainted  with  a  few  of  the  simple 
legial  rules  that  are  of  daily  application  in  his 
business.  While  it  would  be  foolish  and  in  the 
end  expensive  for  him  to  attempt  to  be  his  own 
lawyer,  yet  there  are  matters  familiar  and  of 
daily  occurrence,  the  legal  aspects  of  which  he 
must  understand,  or  be  exposed  to  frequent 
losses  before  he  is  -aware  that  he  needs  a  lawyer. 
It  is  so  unsatisfactory  in  a  business  transaction 
to  find  that  one  has  sought  legal  advice  a  little 
too  late  to  be  benefited  thereby. 

One  matter  of  prime  importance  to  every  busi- 
ness man  who  extends  credit,  is  the  preservation 
of  his  accounts  from  being  barred  by  the  statute 
of  limitations;  or,  in  familiar  language,  from  be- 
coming "outlawed."  The  different  States,  re- 
spectively,  have  their  statutory  limitations  of 

1  California  Fig  Syrup  Co.  v.  Frederick  Stearns  &  Co.,  73 
Fed.  Rep.  812,  43  U.  S.  App.  234,  20  C.  C.  A.  56. 


244  IMPORTANT    BUSINESS    FEATURES. 

time  within  which  certain  actions  must  be  com- 
menced. These  are  wise  provisions  against  the 
raking  up  of  old  claims  after,  perhaps,  important 
witnesses  for  the  defense  are  dead  and  documeu- 
tary  and  other  evidence  lost  and  destroyed.  They 
serve  as  a  stimulus  to  every  dealer  to  keep  his 
affairs  well  in  hand  and  up  to  date;  and  upon 
engaging  in  business  he  must  not  fail  to  inform 
himself  as  to  the  rules  adopted  by  his  own  State 
relating  to  this  important  subject.  Thus  forti- 
fied he  is  prepared  to  protect  his  accounts.  For 
instance,  in  the  State  of  California,  "An  action 
upon  a  contract,  obligation,  or  liability,  not 
founded  upon  an  instrument  of  writing,  or  found- 
ed upon  an  instrument  of  writing  executed  out 
of  the  State,"  must  be  commenced  within  two 
3'ears  from  the  date  upon  which  it  was  made  or 
arose.  Also,  "An  action  upon  any  contract,  ob- 
ligation, or  liability,  founded  upon  an  instru- 
ment in  w^'iting  executed  in  this  State"  must 
be  commenced  within  four  years.  In  an  ordinary, 
personal  account  for  goods  sold,  each  item 
charged  has  a  life  of  two  years  from  its  date  of 
sale;  but  in  the  case  of  a  "mutual,  open  and  cur- 
rent account  where  there  have  been  reciprocal  de- 
mands between  the  parties,  the  cause  of  action 
is  deemed  to  have  accrued  from  the  time  of  the 
last  item  proven  in  the  account  on  either  side." 
Tlie  balance  owing  on  such  an  account  will  have 
a  life  of  two  years  from  the  sale  of  the  last  item, 
and  suit  must  be  commenced  within  that  time. 


PHARMACAI.    Jl'RISI'RUnENCE.  245 

111  the  rase  of  a  proiiiissory  note,  wliicli  is  an 
"instninient  in  writino,"  the  complaint  innst  be 
filed  within  four  years  from  the  day  upon  which 
the  note  is  payable  or  niatnre.  That  is,  if  a  note 
is  made  pa^^able  one  year  after  date,  then  suit 
must  be  commenced  within  five  years  from  date. 

In  the  process  of  protecting  an  acconnt  in  Cal- 
ifornia nntil  a  time  when  a  debtor  may  be  able 
or  be  compelled  to  pay  it,  before  the  expiration 
of  two  years  a  note  should  be  secured;  this  pre- 
serves it  for  at  least  four  years  louiier,  then,  un- 
less a  new  note  be  given,  suit  must  be  commenced, 
after  which  another  year  or  more  may  elapse  dur- 
ing the  pendency-  of  the  action  before  judgment; 
the  judg-ment  is  effective  for  five  years  and  at 
the  end  of  that  time  may  be  renewed. 

Many  losses  have  occurred  througii  ignorance 
of  the  fact  that  a  promise  to  answer  for  the  "debt, 
default,  or  miscarriage  of  another"  must  be  in 
writing.  It  is  not  unusual  for  a  man  of  financial 
responsibility  to  verbally  endorse  the  credit  of 
another,  and  say  that  he  will  stand  good  for  any 
account  which  that  other  may  run.  It  is  easy  and 
graceful,  but  it  is  wholly  ineffectual,  from  a  legal 
point  of  view,  so  far  as  concerns  the  protection  of 
the  creditor.  Such  a  guaranty  cannot  be  en- 
forced ;  and  even  if  the  guarantor,  with  a  fitting 
sense  of  honor,  would  desire  to  pay  the  claim, 
should  he  chance  to  Ix'  insolvent  his  other  and 
legal  creditors  would  object. 


246  IMPORTANT    BUSINESS    FEATURES. 

lu  such  a  case,  in  order  to  be  secure,  the  dealer 
may  refuse  to  extend  the  credit  asked  for,  may 
demand  a  written  promise  from  the  would-be 
l>uarantor,  or  may  agree  to  charge  the  goods  thus 
sold,  to  the  account  of  the  guarantor,  himself.  If 
the  latter  course  be  agreed  to,  he  must  not  open 
an  account  with  the  person  for  whose  benefit  the 
goods  are  furnished,  nor  may  he  ever  make  a  de- 
mand upon  him  for  payment;  he  must  be  consist- 
ent in  his  contention  that  he  relied  wholly  upon 
the  guarantor,  otherwise  the  latter  will  be  held 
free  from  all  legal  obligation  to  pay  the  claim. 

Some  of  the  other  important  cases  in  which 
contracts  are  invalid  at  law,  unless  there  be  some 
memorandum  of  them  in  writing  signed  by  the 
party  to  be  charged,  are  mentioned  in  Chapter 
VIII  of  this  book,  under  the  title  "Explanatory 
of  Contracts ;''  but  the  scope  of  this  work  does  not 
require  their  discussion  in  detail. 


PHARMACAL   JURISPRUDENCE.  247 

CHAPTER  XVI. 

Insurance  on  Drugs. 

The  almost  desperate  means  sometimes  re- 
sorted to  by  insurance  companies,  in  their  efforts 
to  avoid  liability  under  their  contracts,  have  been 
fully  equaled,  if  not  surpassed,  by  the  efforts  of 
parties  insured  to  enforce  unjust  claims  against 
them.  These  contests  have,  in  many  cases,  de- 
veloped conditions  and  legal  questions  in  the  last 
degree  complex  and  vexatious. 

The  question  as  to  what  extent  or  under  what 
conditions  the  keeping  of  an  article  by  the  party 
insured,  expressly  prohibited  by  the  terms  of  the 
policy,  will  invalidate  such  policy  and  prevent  a 
recovery  in  case  of  loss  is  one  of  considerable 
importance  to  druggists. 

An  action  was  brought  in  the  Halifax,  N.  O. 
Superior  Court  to  recover  under  a  fire  insurance 
policy  issued  by  the  defendant  company,  on 
plaintiff's  stock  of  drugs  and  medicines,  which 
was  afterwards  destroyed  by  fire.  The  judgment 
was  in  favor  of  the  plaintiff,  and  the  defendant 
appealed  therefrom. 

In  the  opinion  in  this  case,  affirming  the  judg- 
ment of  the  lower  court,  the  Appellate  Court  said  : 
"It  appears  that  while  the  plaintiff's  principal 
business  was  that  of  a  druggist,  yet,  as  is  com- 
mon with  druggists  in  small  towns,  he  kept  vari- 
ous other  articles.     Nearly  one  half  of  his  stock 


248  INSURANCE   ON    DRUGS. 

was  other  than  drnj^s  and  medicines  strictly 
speaking-,  but  in  common  parlance  it  would  be 
called  a  stock  of  drugs  and  medicines.  After  the 
fire  this  seems  to  have  been  the  first  trouble — the 
plaintiff  supposing  that  his  stock  in  the  store  was 
insured,  while  the  defendants  insisted  that  only 
the  'drugs  and  medicines'  were  insured.  And 
such  is  the  language  of  the  policy. 

"What  then  are  'drugs  and  medicines?'  This 
is  not  easily  answered.  Webster  defines  drugs 
to  be  'substances  used  in  the  composition  of  med- 
icines;' and  again,  'used  in  dyeing  or  chemical 
operations.' 

"It  is  clear  that  the  defendant  in  the  careful 
preparation  of  the  policy  ought  not  to  have  left 
a  matter  of  that  sort  at  large  as  a  trap  in  which 
the  plaintiff  might  be  caught.  This  matter  is, 
however,  brought  forward  for  the  following  spe- 
cific purposes :  1.  The  policy,  even  by  the  de- 
fendant's admission,  does  insure  the  plaintiff's 
'stock  of  drugs  and  medicines  in  the  house,'  &c. 
Well,  is  saltpeter  a  drug?  Yes,  it  is  admitted  to 
l)e.  Was  it  a  part  of  the  stock  as  a  drug?  Yes, 
admitted  to  have  been.  Then  it  was  specifically 
insured  in  the  written  and  governing  part  of  the 
policy.  But  in  the  i^malJ  print  of  the  policy  it 
is  provided  that  if  the  'assured  shall  keep  gun 
powder,  fireworks,  nitroglycerine,  phosphorous, 
saltpetre,  &c.,  the  policy  shall  be  void.' 


PHARMACAL   JURISPRUDENCE.  249 

"Now  the  above  arlicles  are  not  necessarily 
drugs  and  medicines.  The  ]n*ohibition  therefore 
is  not  against  keeping  Uiem  as  dnigs  and  medi- 
cines where  a  pound  of  saltpetre  would  be  as 
harmless  as  a  pound  of  alum,  but  against  keep- 
ing them  as  articles  of  danger.  \\\ih  this  con- 
struction the  policy  conlraci  is  just  and  reason- 
able; otherwise  the  policy  insures  saltpetre,  and 
yet  forbids  the  keeping  of  it.  There  is  no  allega- 
tion that  it  was  kept  otherwise  than  as  a  drug, 
and  no  objection  is  made  to  the  quantity,  and  no 
pretense  that  any  harm  resulted  from  it.  If  the 
president  of  the  defendant  company  had  written 
after  the  fire  as  lie  did  beforcN  that  his  company 
would  not  insist  upon  technicalities  or  take  ad- 
vantage of  inadvertences  where  no  harm  had  re- 
sulted, it  would  have  been  doing  gracefully  what 
the  courts  will  compel  to  be  done,  whether  or  no, 
A  substantial  compliance  with  a  contract  is  all 
that  is  required  in  any  case.  Where  there  has 
been  a  substantial  compliance  and  good  faith, 
technicalities  will  be  disregarded  by  the  courts. 
The  saltpetre  which  was  in  stock  as  a  drug,  kept 
and  sold  as  a  drug,  w  as  insured ;  it  was  forbidden 
to  be  kept  or  used  otherwise  than  as  a  drug,  and 
in  such  manner,  or  quantity,  or  for  such  purpose 
as  would  increase  the  risk. 

"Wood  on  Insurance,  page  840,  is  express  au- 
thority for  what  I  have  said.  'Where  a  policy  is 
issued  u])OH  a  slock  of  goods,  such  as  are  usuallv 


250  INSURANCE   ON    DRUGS. 

kept  in  a  country  store,  it  is  held  that  all  such 
lioods  as  usually  form  a  part  of  such  a  stock  niav 
be  kept,  although  prohibited  to  be  kept  by  the 
printed  terms  of  the  policy'.  ***** 
And  Ayhen  a  policy  coyers  a  stock  of  merchandise 
wliicli  is  in  fact  kept  in  a  country  store,  although 
the  words,  .snclt  f/.s-  arc  uxikiIIi/  kept  in  a  count rj/ 
store,  are  not  used,  the  policy  will  not  be  inval- 
idated by  the  keeping  of  articles  embraced  under 
the  list  of  hazards,  if  the  articles  so  kept  are 
usually  kept  in  such  a  store,  although  in  the 
printed  proyisions  of  such  policy,  the  keeping  of 
such  articles  is  specially  prohibited.' 

''In  our  case  saltpetre  was  on  hand  as  a  part 
of  the  stock  of  drags  at  the  time  the  policy  issued ; 
it  is  usually  kept  in  drug  stores,  and  it  was  al- 
ways kept  on  hand  in  small  quantities  for  retail 
as  a  drug;  the  stock  of  drugs  was  insured;  and 
although  it  was  specially  prohibited  in  the 
printed  terms,  it  does  not  avoid  the  policy  ac- 
cording to  authority  just  quoted,  for  which  he 
cites  a  number  of  cases.     *     *     *"^ 

It  appears  from  this  case  that  when  a  policy  is 
drawn  to  cover  a  "stock  of  drugs  and  medicines 
in  the  house,  &c.,'"  whatever  is  properly  included 
within  the  limits  of  that  description,  so  written 
in,  is  covered  by  the  policy;  notwithstanding  the 
fact  that  the  given  article  is  included  in  a  list, 
set  out  in  the  printed  part  of  the  policy,  speci- 

1  Collins  V.  Farmville  Insurance  and  Banking  Co.,  79  N.  C. 
279,  28  Am.  Rep.  322. 


PHARMACAL    JURISPRUDENCE.  251 

fj'iug  things  which  luiist  not  be  kept  by  the  in- 
siuvd,  under  a  condition  that  a  violation  of  that 
provision  shall  render  the  policy  void. 

In  such  cases  not  only  is  the  given  article,  if 
kept  and  used  only  as  a  drug,  covered  by  the 
policy,  but  it  is  held,  also,  that  the  keeping  of 
that  article  merely  as  a  drug  and  not  in  quanti- 
ties suflBcient  to  increase  the  risk  shall  not 
operate  to  render  the  policy  void.  This  con- 
clusion is  based  on  the  principle  that  the  written 
part  of  the  policy  expressing  most  directly  the 
intention  of  the  contracting  parties,  must  con- 
trol the  printed  part  of  the  document.  Saltpetre 
was  admitted  to  be  a  drug  and  all  drugs  con- 
tained in  the  house  were  clearly  included  in  the 
description  of  the  property  to  be  insured. 

Such  questions  should  be  avoided  as  far  as 
possible  by  a  more  specific  description,  in  the 
policy,  of  the  property  to  be  insured. 

It  may  be  well  tx>  state  here  that  it  is  a  vital 
principle  in  insurance  law  that  the  party  seeking 
insurance  shall  act  in  the  utmost  good  faith,  and 
shall  conceal  nothing  from  the  insurer  that 
would  tend  to  increase  the  risk  assumed. 

In  the  foregoing  case  it  appears  that  the  policy 
was  drawn  to  cover  only  the  driif/.s  and  medi- 
cines contained  in  the  building,  when  nearly  one- 
half  of  the  stock  of  goods  consisted  of  articles 
not  included  within  those  terms.  This  fact  oc- 
casioned a  serious  loss  to  the  plaintiff  druggist. 


252  INSURANCE    ON    DRUGS. 

and  it  is  a  point  of  some  interest  to  owners  of 
drug  stores  desiring  to  effect  safe  insurance  on 
an  entire  stock  of  goods. 

The  case  of  Carrigan  v.  Lycoming  Fire  Ins. 
Co.,  53  ^^rmont,  page  418,  38  Am.  Rep.  687, 
throws  some  light  upon  the  force  to  be  given  to 
terms  used  in  the  policy  in  describing  the  goods 
intended  to  be  insured. 

In  this  case  the  policy  was  written  for  |1200.00 
covering,  as  written  in,  "stock  in  trade,  consist- 
ing principally  of  groceries,  provisions,  drugs 
and  medicines,  fancy  goods,  and  such  other  mer- 
chandise as  is  usually  kept  in  a  country  store, 
including  wines  and  liquors,  *  *  *  if  the  as- 
sured shall  keep  gunpowder,  *  *  *  benzine, 
benzole,  etc.,  *  *  *  without  written  permis- 
sion in  this  policy,  then,  and  in  every  such  case, 
this  policy  shall  be  void." 

The  stock  of  goods  was  burned  and  the  in- 
sured sued  the  company  for  the  amount  of  the 
policy.  Judgment  was  rendered  in  favor  of  the 
defendant  and  the  case  was  appealed. 

In  rendering  its  judgment  the  Appellate  Court 
said:  "The  defense  claimed  that  the  contract, 
and  the  claim  under  it,  embraced  liquors  kept  for 
sale  contrary  to  law,  and  the  fixtures  used  in 
such  illegal  traffic,  which  was  carried  on  by  the 
plaintiff;  and  that  by  reason  of  such  illegality 
the  policy  was  null  and  void. 

"We  think  that  a  contract  directlv  insurino; 


PHARMACAL    JURISPRUDENCE.  253 

liquors  intoiuled  for  illegal  sale  iu  violatiou  of 
the  law  of  the  State  is  invalid.  Such  contracts 
are  made  in  order  to  afford  the  assured  protec- 
tion in  his  illegal  acts.  Shaw,  Ch.  J.,  says: 
'Where  the  direct  purpose  of  a  contract  is  to  af- 
fect, advance  or  encourage  acts  in  violation  of 
law,  it  is  void.  But  if  the  contract  sought  to  be 
enforced  is  collateral  and  independent,  though 
in  some  measure  connected  with  acts  done  in 
violation  of  law,  the  contract  is  not  void.'  Board- 
man  V.  Merrimack  Mutual  Ins.  Co.,  8  Cush.  583. 
This  principle  has  been  applied  to  contracts  of 
insurance  against  tire,  by  the  courts  of  Massa- 
chusetts, in  several  recent  cases.  In  Kelly  v. 
Home  Ins.  Co.,  97  Mass.,  288,  the  policy  was 
solely  upon  liquors  and  the  casks  containing 
them;  and  in  Johnson  and  another  v.  Union  M. 
&  F.  Ins.  Co.,  and  Lawrence  v.  National  Fire  Ins. 
Co.,  127  Mass.,  555,  and  notes  on  page  557,  upon 
billiard  and  drinking  saloons,  unlicensed,  kept 
in  violation  of  law.  At  the  time  the  policies  in 
these  cases  were  issued,  it  must  have  been  ap- 
parent to  the  insurers  that  the  object  of  the  con- 
tracts was  illegal,  unless  the  insured  were  duly 
licensed;  and  the  cases  do  not  show  that  any  in- 
formation upon  that  subject  was  sought  for;  and 
the  insured  would  have  had  no  cause  for  com- 
plaint, in  case  of  loss,  if  the  defendants  insisted 
upon  the  illegal  nature  of  the  business  as  a  de- 
fense. 


254  INSURANCE    ON    DRUGS. 

"The  same  subject  has  beeu  uuder  considera- 
tion in  Michigan;  and  the  Supreme  Court  of 
that  State,  in  a  case  almost  identical  with  this, 
held  that  the  policy  was  valid,  stating,  that,  to 
make  the  case  analogous  to  those  involving  ma- 
rine policies  on  unlawful  voyages,  and  lottery 
insurances  which  have  been  uniformly  held  null, 
would  require  the  policy  to  be  in  express  terms 
insuring  the  party  selling  liquors  against  loss 
bv  fire  or  forfeiture." 


PHARMACAL   JURISPRUDENCE.  255 

CHAPTER  XVII.  . 

The  Pharmacist  in  Court. 

However  averse  the  pharinacist  may  be  to  lit- 
i<>ation,  it  is  necessary,  sometimes,  for  him  to  ap- 
pear in  court.  It  may  be  as  plaintiff  or  defen- 
dant, or  as  an  ordinary  witness,  an  expert  wit- 
ness, or  a  juror.  If  he  appears  in  the  capacity  of 
plaintiff  or  defendant,  he  will  probably  have  his 
attorney  with  him,  and  will  act  under  his  advice. 

If  the  pharmacist  be  subpoenaed  as  an  ordi- 
nary witness,  he  must  obey  the  subpoena,  though 
in  a  civil  suit  he  may  demand  the  fees  to  which 
he  is  entitled  for  travel  to  and  from  the  place 
designated,  and  also  for  one  day's  attendance 
while  there.  As  an  ordinary  witness  he  is  ex- 
pected and  permitted  to  testify  only  to  such  facts 
as  are  within  his  personal  knowledge. 

In  the  case  of  expert  testimony,  the  conditions 
are  different.  In  the  determination  of  questions 
connected  with  any  science,  art  or  trade,  or  any 
department  of  learning  or  industry,  requiring 
special  training  or  scientific  knowledge,  the  wit- 
ness is  not  restricted  to  the  statement  of  facts, 
but  may  express  his  opinion.  Indeed,  in  many 
cases  it  is  his  opinion  only  that  is  wanted ;  and  he 
may  give  it  upon  a  case  hypothetically  stated,  or 
upon  a  case  in  which  the  facts  have  been  estab- 
lished. 


256  THE    PHARMACIST    IN    COURT. 

Before  a  witness  is  .perinitted  to  give  expert 
testimony,  he  must  be  examined  as  to  his  qualifi- 
cations to  give  an  opinion  on  the  point  in  issue. 
To  this  end  he  may  be  subjected  to  a  close  exam- 
ination and  cross-examination;  and  it  is  for  the 
court  to  decide  as  to  his  fitness  to  testify  in  the 
matter. 

The  expert  witness  is  entitled  to  remuneration 
for  his  opinion,  and  the  weight  of  authority  is 
that  he  cannot  be  compelled  to  give  his  profes- 
sional opinion  without  compensation.  However, 
it  is  customary  and  proper  for  the  witness,  before 
the  trial,  to  stipulate  for  a  fair  compensation 
with  the  party  desiring  his  services. 

Unless  specially  exempt  by  the  statutes  of  his 
State,  the  pharmacist,  like  any  other  citizen,  is 
liable  to  serve  as  a  juror. 


INDEX. 


THESIS   ON   THE    LAW    IN   GENERAL. 

PAGE 

The  Beginnings  of  Law 11 

American  System  of  Jurisprudence 13 

Constitution  of  the  United  States 14-16 

Federal  Law 14-16 

State  Law 17-22 

Supreme  Law 14-16 

Growth  and  Uniformity  of  Laws 11-13 

Comity  of  Nations 58 

Comity  Between  States 17 

Common  Law 22-38 

Conflict  in  Supreme  Law 16 

Roman  Civil  Law 38-44 

International  Law 57-60 

Private  International  Law 60 

Feudal  System 32-38 

Equity 44-57 


PHARMACAL  JURISPRUDENCE. 

Apothecary 

Name  and  Origin  of< 81-82 

Allegation  of  Fault 

Form  of. 201-202 

Boards  of  Pharmacy 

Appointment  of. 131 

Powers  of. 131-160 

Business  Features 

As  to  Preservation  of  Accounts 243-244 

As  to  Commencement  of  Actions 244-245 

As  to  Guaranty  of  Account 245-246 

As  to  Contracts  That  Must  Be  in  Writing 167-168 

Constitutional     Status     of     Acts     Regulating 
Pharmacy 
Considering  Origin  of  United  States  Government..  136-138 
Legal  Capacity  of  State 186 


258  INDEX. 

PAGE 

Absolute  Power  of  People 136 

Powers  of  Federal  Government 137 

Powers  of  State  Government 137 

Nature  of  Constitution  of  the  United  States 138 

Powers  Withheld  by  People 138 

Presumption  in  Favor  of  State  Laws 139 

Kinds  of  Unconstitutional  Laws 140 

Statement  of  Supreme  Law 140 

Law  Under  State  Constitution 142 

Nature  of  Laws  Regulating  Pharmacy 142-143 

Limits  of  Police  Power  of  State 143-144 

When  State  Law  is  Constitutional 144 

Law  Requiring  License  to  Practice  Profession 144 

Laws  Must  Be  General  in  Operation 146 

Power  of  Legislature  to  Prescribe  Conditions 147-148 

Status  of  Exceptions  to  Laws 148-149 

Laws  to  Protect  Life  and  Health 149-150 

Contributory  Negligence 

Definition  of 223 

Effect  Upon  Cause  of  Action 223-224 

Burden  of  Proving 224 

Of  One  Helping  Himself  from  Druggist's  Jar 225-230 

Certificate  and  Notice  of  Death 

Legal  Force  of  in  Action  Against  Pharmacist 203 

Care 

Meaning  of  "Ordinary" 192-193 

Court 

Pharmacist  in 255-256 

Contracts  of  Druggist  and  Pharmacist 

Explanatory  of  Contracts 164-168 

Contracts  Implied  by  Law 165-166 

Certain  Contracts  Must  Be  in  Writing 167-168 

Grocer's  Contract  of  Warranty 170,  189,193 

Sale  of  Goods  on  Inspection 170-172 

Druggist's  Contract  of  Warranty 172-174 

Pharmacist's  Contract  of  Warranty 174-175 

Definitions  of  Law^ 

Law 63 

Municipal  Law 64 


INDEX.  259 

PAGE 

Common  Law 65-66 

Civil  Law 67-68 

Criminal  Law 68 

Foreign  Law 70 

International  Law 70 

Private  International  Law 70 

Organic  Law 69-70 

Statute  Law 68-69 

Drugs 

Liability  of  Dealer  in 115,  176-196 

Adulteration  of. 131 

May  Be  Sold  by  Whom 130 

Druggist 

Liability  for  Negligence 176-196 

Not  an  Insurer 193-194 

Caveat  Venditor 189 

Damages 

Amount  Fixed  by  Jury 184-185 

Defamatory  Words 

Against  Unlicensed  Practitioner 162 

Dangerous  Occupations 

Special  Responsibility 123-124 

Persons  Who  Deal  With  Poisons 195-196 

Employer  and  Clerk 

Legal  Relation  of...^. 221-222 

History  of  Pharmacal  Jurisprudence 

Beginnings  of  Pharmacy 77-78 

Early  Legal  Conditions 78-81 

Early  English  Statutes 81-90 

Early  French  Statutes 90-91 

Grocers  as  Druggists 82 

Apothecaries  in  England 91-92 

Intoxicating  Liquors 

Sale  of  by  Druggist 134 

Included  in  "  Medicine  and  Poisons  " 134 

Unlawful  Use  of  in  Medicines 134-135 

Under  "  Local  Option  "  Law 135 

Insurance 

On  Stock  of  Drugs 247-254 


260  INDEX. 

PAGE 

Jurisdiction 

Of  Board  of  Pharmacy 131 

Nature  of  that  of  Board  of  Pharmacy 160 

Independent 163 

Appeal  fromAction  of  Board 161 

Jurisprudence 

Definition  of. 71 

Pharmacal 71-76 

License 

To  Practice  Pharmacy 158 

Issued  by  Whom 158 

Issued  to  Pharmacist 158 

Issued  to  Assistant  Pharmacist 158 

To  Those  Practicing  Antecedent  to  Act 159 

Discretion  of  Board  Herein 159-160 

Registration  Required 159 

Revocation  of 160-162 

Liability  of  Pharmacist 

Dual  Nature  of 231 

Not  Without  Fault 193,  231,  234 

Burden  of  Proving  Want  of  Care 232 

For  Not  Labeling  Poisons 232 

When  Purchaser  is  Fully  Warned 232 

For  Filling  Prescription  With  Overdose  of  Poison..  233 

Recommending  Another's  Prescription 235 

Not  Excused  by  Negligence  of  Physician 235-236 

Without  Regard  to  Privity  of  Contract 214,  220,237 

For  Attempting  to  Practice  Medicine 95-112 

For  Prescribing  Patent  Medicine 104-110 

For  Error  in  Preparing  Prescription 197-209 

For  Act  of  Clerk 204-206 

For  Negligence 176-196 

As  Manufacturer 210-222 

Legislation 

The  Initiative 121-123 

Malpractice 

By  Pharmacist 112-114 

Manufacturing  Pharmacist 

Liability   for  Mislabeling   Drug  and  Putting  it  on 

Market 210-222 


INDEX.  261 

PAGE 

Medicine 

Practice  of  Defined 105-106 

Restrictions  on  Practice  of 1>5-112 

Police  Power  of  State  to  Regulate 120-121 

Constitutional  Status  of  Restrictions  on  Practice....  145-147 

Property  Rights  in  Practice  145 

Practice  of  by  Pharmacist 108-109 

Relations  of  to  Pharmacy 94-  96 

Negligence 

Definition  of 234 

Liability  for 216-217 

(See  also  "Druggist"  &  "Liability  of  Pharmacist") 

Pharmacal  Jurisprudence 

Limits  of 74-76 

Pharmacist 

Defined 93 

His  Relation  to  Statutes  Regulating  Pharmacy 94 

Licentiate 158 

Assistant] 158 

Degree  of  Knowledge  and  Skill  of. 129 

Duty  of  Under  General  Law 129 

In  Charge  of  Pharmacy 134 

Pharmacy 

Defined 93 

Practice  of  Under  Common  Law 115-116 

Practice  of  Defined  r. 93,151 

Relation  of  to  Medicine 94-  95 

Restrictions  on  Right  to  Practice 130 

Reasons  for  Restrictions 116-120 

Practicing  Without  License 162 

Penalty  for  Practicing  Without  License 133 

Accumulated  Penalties 135 

Poisons 

By  Whom  May  Be  Sold 158 

Labeling  and  Registration  of 132-232 

Overdose  of  in  Prescription 233 

In  Prescription  Not  to  Be  Labeled 134 

Penalty  for  Sale  of  Without  Label 133 

Physician 

License  of  Under  Statute 96,  99,  102, 107 


262  INDEX. 

PAGE 

Penalties  for  Illegal  Practice  by 111-112 

Recovery  for  Services  by  Unlicensed 96-  99 

Emergency  Cases 106 

Emergency  Case  Defined 107 

Malpractice  by  Under  Statute 112-114 

May  Not  Practice  Pharmacy 152 

May  Compound  and   Sell    Medicine  to  His  Own 

Patient 162 

Interest  of  in  His  Prescription 239-241 

Prescription  of  Physician 

Must  Be  Filed  by  Pharmacist 241 

As  Evidence 241 

Ownership  of. 239-241 

Qualifications  of  Pharmacist 

Under  General  Law 128-130, 189 

Under  Statutes„ 130-131 

How  Determined 130-131 

Recovery  for  Medicines  and  Services 

May  Not  Be  Had  for  Illegal  Practice 110 

Registration 

Of  Pharmacist 131 

Validity  of  Time  Limit  for 159-160 

Right  of  Action  for  Damages 

Against  Pharmacist 188 

Held  to  Survive 238 

Inherited 202 

Against  Remote  Vendor 217-219 

Trade-Mark 

Defined 242 

May  Consist  of  What 242-243 

Registration  of. 242 

Usual  Domestic  Remedies 

Excepted  from  Restrictions  on  Practice  of  Pharmacy  133,  235 


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